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The puhiih . has received the following letters 
concerning the author of Constitutional History of the 
United States, and his qualification to write such a 
work. 



ToPEKA, Kan., July 31, 1903. 

Dear Sir : 

I have known Judge Nelson Case, of Oswego, Kansas, for 
many years, during six of which I served as a member of the 
Supreme Court of this State, before which court he was an active 
practitioner. As a lawyer he stands in the very front rank of the 
profession in this State, and is a citizen of the highest character. I 
give to him my cordial recommendation. 

Respectfully, 

FRANK DOSTER, 
Ex-Chief Justice Supreme Court of Kansas. 



ToPEKA, Kan., July 31, 1903. 

Dear Sir : 

Judge Nelson Case, of Oswego, Kan., has long been a 
practitioner in this court. I have had a personal acquaintance with 
him for twenty-five years, and know him to be a strong, capable 
lawyer. He has had many cases involving large amounts of money 
and very important questions and has presented them in a forcible 
and effective way. He is a close student of the law, including its 
sources, its history, and its development. He has an excellent 
standing in the community in which he lives and in the State, not 
only as a lawyer, but as an upright and honorable citizen. 

Very respectfully, 

W. A. JOHNSTON, 
Chief Justice of the Supreme Court of Kansas. 



CONSTITUTIONAL HISTORY 

OF THE 

UNITED STATES 



CONSTITUTIONAL HISTORY 



OF THE 



UNITED STATES 



* > 



BY 



NELSON CASE 

OF THE KANSAS BAR 
AUTHOR OP "EUROPEAN CONSTITUTIONAL HISTORY" 



1904 



LIBBSBV n» CONGRESS 

Two CoDles Received 

JUN 17 1904 

Oooyrlfrht Entry 

CLASS >KXXo. No. 

COPY B 



Copyright, 1904, 
By nelson case 



v/ ^ 



i\ 



<^t (CrotB f>xtiiy i^no gorft 



CONTENTS 

PAGE 

Introduction 1 

I. Period of Colonization 

Conditions in England at time of Colonization . 8 

Effect of religious thought on the Constitution . 11 

Early claims for Colonial Independence . . 11 

Virginia 17 

Maryland 21 

Plymouth 24 

Massachusetts ........ 25 

Connecticut 35 

Rhode Island 37 

New England Town Meetings 39 

The other Colonies in general 41 

Attempts at Union before the Revolution . . 43 

II. Period of the Revolution 49 

III. Period of the Confederation 62 

IV. Period of Preparing and Adopting the Con- 

stitution 

Matters leading to the call of the Convention . 70 

How the Convention was called .... 73 

Authority of the Convention 77 

What the Convention thought it was doing . . 80 

What the Convention did 95 



VI 



CONTENTS 



V. Period of Adopting and Amending the Con- 
stitution 119 

VI. Period of Constitutional Construction and 
Expansion 

Beginning of party conflicts 126 

Acquisition of new Territory 134 

Power of Congress over the Territories. . . 141 

Slavery as affecting Constitutional History . 142 
The Doctrine of Indestructible Statehood . .170 

Secession under the Constitution .... 174 

The Government's right of self-preservation . 202 
Constitutional changes as the result of the 

Civil War 210 



VII. Several Topics Bearing on the General 
Subject 

Preliminary remarks 

Relation of the Government to Slavery 

The Territories under the Constitution. 

The President's relation to Legislation. 

The President's power to declare War . 

Congressional control over its Records. 

Freedom of Speech 

Freedom of the Press ..... 

The right of Petition 

Constitutionality of the Legal Tender Act 

Government by Injunction 
Appendix B. Articles of Confederation 
Appendix B. Constitution of the United States 



226 
227 
229 
231 
232 
233 
234 
235 
235 
242 
248 
251 
264 



CONSTITUTIONAL HISTORY 

OF THE 

UNITED STATES 



INTRODUCTION 

In the work now presented I have tried to bring 
within the compass of a medium-sized volume the essen- 
tial historical facts necessary to gain a clear and com- 
prehensive view of our national Constitution as it exists 
at the present time. The fact is historically indis- 
putable that our Constitution has been a subject of 
gi'owth. What was placed in the written document by 
the constitutional fathers, who assembled in Philadelphia 
in 1787, was the condensed wisdom of a century and a 
half of colonial experience in Constitution forming and 
in contending for constitutional principles, in addition 
to all the knowledge they could gather from the study 
of the history of other nations. But the fathers who 
drew the Constitution in 1787 had little conception of 
what that instrument would become through a century's 
growth, because they could not at that time comprehend 
what a marvellous expansion there would be of the 
national germ which they saw sprout and commence to 

1 



2 CONSTITUTIONAL HISTORY 

grow, and which the succeeding generations have seen 
come to a fuller perfection. 

Important additions have been made to the original 
Constitution by way of amendment, but scarcely more 
so than those which have come to it through the process 
of the gradual unfolding of its unexpressed meaning, 
which has naturally followed the expansion of our 
national domain, the development of our national re- 
sources, the meeting of new responsibilities in govern- 
ment, the contending with new difficulties which have 
confronted us in the execution of our newly acquired 
powers. 

While we have a written, and therefore, in a certain 
sense, a settled Constitution, it is an elastic one. Had 
the original Constitution of 1787 been so limited by its 
own terms that it could not have been construed to mean 
more than was actually and clearly expressed by the 
language in which it was clothed, our Government would 
soon have gone to wreck or have remained a feeble and 
insignificant member of the sisterhood of nations, unless 
by amendment of the old, or by the adoption of a new 
constitution new power had been given it. Fortunately 
it was not so framed. 

With no express power in the Constitution for the 
general government assuming the debts of the several 
States contracted during the Revolutionary War, nor 
for funding the entire national debt thus increased, nor 
for establishing a national bank, Hamilton was able to 
find authority in the Constitution for each of these 



OF THE UNITED STATES 3 

measures when that instrument was interpreted in the 
light of the financial needs of the country and with a 
desire to carry into effect the purpose for which the 
Constitution was framed and adopted. While there is 
no section in the Constitution having the slightest 
reference to an expansion of our territorial limits, 
authority to make such extension was found by states- 
men to whom that problem was presented, even though 
Jefferson was unable to see it clearly. Although the 
Constitution gives Congress no express authority to 
construct, or to aid in constructing, canals or railroads, 
the discovery of such a power inhering in a government 
which was authorized to regulate commerce has made it 
possible to connect the Atlantic with the Pacific by both 
iron and water, Buchanan and his school could find no 
authority in the Constitution to coerce a sovereign State. 
But because such authority was there found by those 
who succeeded him in the administration of the Govern- 
ment we have one strong nation to-day instead of two 
or more weak confederacies. 

It is well for us as a people that the Constitution, in 
addition to the powers expressly conferred and enu- 
merated, contains the provision that Congress shall have 
power "To make all laws which shall be necessary and 
proper for carrying into execution the foregoing powers, 
and all other powers vested by this Constitution in the 
government of the United States, or in any department 
or officer thereof." 

That the Constitution contains inherent powers which 



4 CONSTITUTIONAL HISTORY 

are found in no one section, which are not definitely ex- 
pressed or described in any language that we can there 
read, was believed at the time of its adoption, and has 
been the prevailing opinion of the greatest statesmen who 
have lived to interpret and administer it since. To some- 
what restrict Congress in the exercise of some of these 
unexpressed powers was the purpose of several of the 
amendments which were proposed by the conventions of 
the people who adopted the Constitution, and which 
were subsequently submitted by Congress and ratified by 
the States. I have believed it to be proper in a consti- 
tutional history to call especial attention to this feature 
of our Constitution and to make its importance some- 
what prominent. 

But while our Constitution is, as I have stated, an 
expanding one, still it is a written one whose meaning 
is to be sought in the instrument itself. And therefore 
its interpretation is to be governed by rules very differ 
ent from those which are applicable in construing the 
British Constitution. This fact is not to be lost sight 
of in the matter of writing a constitutional history. 
Were one writing a constitutional and political history 
of the two countries the mode of treatment might prop- 
erly be substantially the same for both. But in writing 
purely a constitutional history, matter which could very 
properly form a part of a work treating of an un- 
written constitution, like that of the British Empire, 
might be inappropriate in a work treating of a written 
constitution, like that of the United States. In the work 



OF THE UNITED STATES 5 

here presented I have aimed to treat of no poHtical 
history which does not have a direct bearing on some 
feature of constitutional interpretation or growth. 

There are those who read history as they read an 
algebraic problem, and having ascertained a certain 
number of facts, they seek for the expected result with 
the same confidence as they look for the unknown quan- 
tity at the conclusion of the solution of a problem by the 
rules of mathematics. I have never believed in that kind 
of historical research, nor do I believe that a true history, 
either political or constitutional, will be presented if 
written from that standpoint. He who believes that all 
political and governmental action is dictated in the party 
caucus and convention will never be able to either write 
or read and interpret American constitutional history. 

That through the course of our political development 
and constitutional growth there has run an influence 
unknown to any political party, that over our destiny 
as a nation a power has presided of which both the poli- 
tician and the statesman have generally been ignorant, 
that results in government have been reached and ends 
attained in the establishment of popular rights which 
were contrary to the expectation of those who supposed 
they were directing public affairs, is a fact so evident 
that to disregard or deny if is to banish from our con- 
sideration one of the controlling elements in the evolu- 
tion of our constitutional government. 

We read of an Eastern monarch who, because of his 
assumption of power and disregard of God's claims, was 



6 CONSTITUTIONAL HISTORY 

driven from men and compelled to make his habitation 
with beasts, and to eat grass as oxen, until he learned 
that "the Most High ruleth in the kingdom of men and 
giveth it to whomsoever He will." Some of our modern 
statesmen and writers have not been as good students of 
history as was Nebuchadnezzar, for they have never 
learned what he, in his retirement, was brought to 
acknowledge, that before the Most High "all the in- 
habitants of the earth are reputed as nothing; and He 
doeth according to His will in the army of heaven and 
among the inhabitants of the earth; and none can stay 
His hand, or say unto Him, What doest thou ?" 

In the preparation of this volume I have entertained 
the belief that there is a divine control in the affairs of 
men, and that this control is manifested in many ways 
in the development of the government and institutions 
of a people. It seems to me that through the gradual 
unfolding of a lofty purpose in the development of the 
people is the divine plan most clearly manifested. And 
because of such divine manifestation I believe that most 
of that which is worth preserving comes from the people. 
I have felt that the best results in government and the 
highest standard of constitutional attainment are to be 
looked for in those efforts which have sprung directly 
from the people. It took a century of the best thought 
of the people to reach the truest and the most approved 
construction of our fundamental law. We rightly at- 
tribute great merit to Hamilton, and Marshall, and 
Story, and Webster, for their masterly exposition of our 



OF THE UNITED STATES 7 

Constitution. But the best thoughts of the greatest 
minds have, in some way, been made possible by, and are 
but the concentrated thought of, the people. The high- 
est morality is worked out by a desire on the part of the 
people to live better lives. And the best conception of 
constitutional government yet attained has not sprung 
alone from some master mind, but has been developed 
through the experience of the people in their daily lives. 
I have, therefore, thought it necessary in order to get a 
true understanding of our constitutional history to trace 
the line of development which has taken place in the ex- 
perience of the people and which has finally crystallized 
into constitutional law. In so far as I have made this 
plain I feel that I have succeeded in accomplishing the 
object I had in view in writing this volume. 



CONSTITUTIONAL HISTORY 



I 

PERIOD OF COLONIZATION 

CONDITIONS IN ENGLAND AT TIME OF COLONIZATION 

As individual ability, habits, and character are to be 
studied in the light of inherited tendencies through gen- 
erations of ancestry, so American constitutional history 
is to be fully understood only by looking into those in- 
stitutions out of which our own have sprung. If one 
would ascertain the origin of the Constitution of this 
country he must seek for it among the records treating 
of the fierce conflicts between king and people, of the 
growth of chartered rights, of the development of par- 
liamentary government, in the island home of those who 
first planted free institutions on the American continent. 

In "European Constitutional History" I have traced 
somewhat in detail the growth of English liberty and 
the history of representative government. In reference 
to this preliminary work I shall do no more in this con- 
nection than to state conclusions. American colonization 
was commenced and, except as their rule was interrupted 
by Parliament and Cromwell, for three-quarters of a 
century was continued under the rule of the Stuarts. 
During the reigns of the Houses of York and Tudor the 



OF THE UNITED STATES 9 

crown had, in a large measure, concentrated In itself the 
exercise and control of those forces in government which 
the people had theretofore, by centuries of contest with 
royalty, secured as the safeguard of their civil liberties. 
But popular liberty was dormant rather than dead, and 
only needed favorable influences to cause it to spring 
forth anew and with greater vigor than ever. The high 
ideas of royal prerogative entertained by the several 
members of the House of Stuart, their natural tendency 
to absolutism in government and tyrannical rule, added 
to their general lack of ability, formed the occasion for 
the people to reassert their ancient rights and privileges. 

Each time the King interfered with the legitimate 
exercise of parliamentary rights the people became more 
determined than before to relieve themselves from arbi- 
trary rule. Forced benevolences, compulsory payment 
of ship money, and illegal taxation of every kind which 
the King could devise for the purpose of filling his ex- 
chequer were insufficient to meet the necessary expenses 
of government, and, though unwillingly, the people had 
to be appealed to for parliamentary aid. Thus, during 
all the history of this House, notwithstanding the most 
strenuous exertions of the King to maintain, strengthen, 
and extend the royal prerogatives, were the rights of the 
people and the constitutional doctrine that Parliament 
alone was invested with authority to enact laws and levy 
taxes, being better established and more generally exer- 
cised. 

It was in these struggles and amid the development 



10 CONSTITUTIONAL HISTORY 

of these principles that those champions of human liberty 
were reared who planted, and through their early years 
nourished, the free institutions which we to-day enjoy. 
While England had no one document embodying her 
constitution and the fundamental rights of the people, 
she had her Magna Charta, her almost numberless royal 
charters confirming the liberties of the people, her Peti- 
tion of Rights, and from these the early settlers of this 
country could well understand the advantages of written 
documents embodying a statement of the fundamental 
rights of the people and expressing the limitations of 
power in the government which should be established 
over them. It was in the light of this history and of 
these achievements that our forefathers commenced mak- 
ing and writing our constitutional history. 

The spirit of civil liberty, of personal rights, of self- 
government, of taxation only by the people themselves, 
of the responsibility of rulers to the people as the final 
depository of power, was firmly inwrought into the very 
being of those who crossed the Atlantic to plant new 
homes in the wilderness, and those rights and privileges 
they sought from the first to make sure for themselves 
and their posterity by embodying their doctrine in fun- 
damental laws. The American colonists commenced writ- 
ing their constitutions in the light of the English doc- 
trine, irrevocably fixed by Magna Charta, and sanctioned 
by four centuries of national history and experience, 
that "We will cause nothing to be done by anyone, either 
by ourselves or any other person, by means of which any 



OF THE UNITED STATES 11 

one of these concessions and liberties shall be revoked or 
diminished, and if any such thing may have been caused 
to be done, let it be held null and void, and we will never 
make use of it, by ourselves or by anyone else." This 
established doctrine of Magna Charta, embodied in prin- 
ciple though not in the same language in the early 
American constitutions, was finally stated, when our 
national Constitution was prepared, in a way that has 
made our rights as secure as did Magna Charta make 
secure the rights of Englishmen ; this declaration in our 
fundamental law is that this constitution, which declares 
and limits the powers of the government and secures the 
rights of the governed, shall be the supreme law of the 
land. There is no room here for tyrannical rule or ar- 
bitrary government. 

The colonists before starting for America sought to 
secure charters, embodying these doctrines of liberty 
and self-government, under the royal hand and seal and 
acknowledged by him to be their fundamental right. In 
some instances these charters were almost all that could 
be desired, while in other cases they but partially stated 
the rights, or left an inference that they were subject 
to be modified or revoked by the granting power. 

EFFECT OF RELIGIOUS THOUGHT ON THE CONSTITUTION 

There can be no doubt that the constitutional history 
of America, as well as that of Europe in general, was 
largely influenced, and the course of its current con- 



12 CONSTITUTIONAL HISTORY 

trolled, by the Protestant Reformation. Its establish- 
ment of the doctrine of freedom of conscience and the 
right of private judgment had the effect of creating a 
spirit opposed to absolutism in State as well as Church, 
and forced on those in authority the adoption of liberal 
principles in government. 

Nearly all the settlers who came to America had im- 
bibed these principles. Some of them, it is true, in place 
of Roman absolutism had adopted an intolerance of 
their own, but it had no such controlling effect on the 
masses of the people as Romanism had exerted, and a 
large proportion of the colonists entertained the most 
liberal Christian views. Such persons would be satisfied 
with nothing less in government than freedom of 
thought and action. 

EARLY CLAIMS FOR COLONIAL INDEPENDENCE 

There was always a conflict of opinion between the 
English Government and the colonies as to the rights 
of the latter. Whether the colony was under, what was 
termed, a proprietary, a provincial, a royal, or a charter 
government, the claims of the colonists and their actual 
exercise of authority were always greater than their 
theoretical rights according to the interpretation placed 
on the grant or charter by the English Government. In 
the proprietary government sovereignty was supposed 
to reside in the King, but the proprietary was given that 
full measure of government and control that belonged 



OF THE UNITED STATES 13 

to a feudatory lord of a county under the feudal system. 
The proprietary was, in effect, what would have been 
termed a count palatine of the old feudal government. 
In a royal government sovereignty and power of govern- 
ment were claimed to remain with the King. In a charter 
government those to whom the charter was granted were 
supposed to have about the same rights as belonged to 
members of any civil corporation. But in each of these 
forms of government the colonists claimed much more 
than the English Government conceded. 

When the claim put forth by the British Government, 
that Parliament had unlimited authority to legislate for 
the colonies in all cases, was once definitely stated it was 
from the first vigorously denied and contested by the 
colonists. However, the nature of the colonial govern- 
ment, the situation of the colonists and their relation to 
the mother country, and the practice of governments 
under which colonies have been planted and maintained, 
seem to warrant a claim to some sort of home legislative 
authority. If such claim had been put forth in a more 
moderate form and a less objectionable way, probably 
it would not have met with strong resistance. The 
charters themselves, in some instances, at least, impliedly 
recognized the legislative authority of Parliament to 
some extent. But probably this never included the par- 
liamentary right to tax the colonies. 

Although the English lawyers generally did not con- 
cede it, and law writers denied it, the colonists always 
claimed that as British subjects they were entitled to all 



14 CONSTITUTIONAL HISTORY 

the legal protection of Englishmen, and that they brought 
with them to this country the common law of England, 
as modified by parliamentary enactments up to the time 
of their migration. This has always been the American 
doctrine. With the common law in full force the colo- 
nists generally claimed the right of independent legisla- 
tion, subject to no interference or control by the crown 
or Parliament of Great Britain. 

While a difference of opinion existed in England and 
America as to the authority of the parent government 
over the colonies, still no serious conflict arose till about 
the middle of the eighteenth century. But when Eng- 
land commenced to enforce her navigation laws, and 
more especially when she entered on the policy of in- 
ternal taxation of the colonists by means of the stamp 
act, the old conflict of opinion arose and came to be more 
clearly defined, and the position of the colonists was more 
boldly and vigorously proclaimed and enforced. But 
even then there was not a unanimity of opinion either in 
England or America. In England probably the pre- 
vailing opinion was that Parliament had full power of 
legislation over the colonies in all matters, including tax- 
ation. But a very respectable number, headed by the 
elder Pitt, while claiming for Parliament legislative ju- 
risdiction over the colonies in all matters of general con- 
cern, including navigation and commerce, conceded to 
the colonies the exclusive right of taxation, and denied 
to Parliament any authority to levy taxes on the colo- 
nists in any manner or for any purpose. But in America 



OF THE UNITED STATES 15 

the prevailing opinion was that all legislative authority 
resided with the colonies, and they were under no obliga- 
tion to submit to any act of Parliament interfering with 
their colonial affairs. However, even here a very large 
number of the leading colonists conceded to Parliament 
authority nearly as extensive as claimed for it by Pitt, 
but, with him, denied absolutely any right in Parlia- 
ment to levy taxes on the colonies. If Pitt, instead of 
Grenville, had been prime minister, no stamp act would 
have been passed and, in all probability, it would have 
been many years before any serious conflict of authority 
would have arisen between the home and colonial govern- 
ments. With as strong a sentiment as at that time pre- 
vailed in America in favor of parliamentary authority 
over trade no strong resistance would have been urged 
had parliamentary legislation been confined to that. 

The basis on which Americans claimed exemption 
from parliamentary taxation, and so far as that claim 
extended, from general parliamentary legislation, was 
not solely nor principally because of their chartered 
rights; indeed, many refused to place it on that ground 
at all. But they claimed that the parliamentary right 
of legislation and taxation had always been limited to 
those who were represented in that legislative body ; that 
the colonists were not, and in the nature of things could 
not be, represented in Parliament; that their colonial 
legislatures had exercised, and by the mother country 
had been conceded to possess, full legislative powers. 
The colonists asserted that they were not bastards but 



16 CONSTITUTIONAL HISTORY 

sons of England, and therefore were entitled to all the 
rights of Englishmen; that to submit to the imposition 
of taxes by a body in which they were not represented 
was to concede themselves as unworthy the descent of 
freebom Englishmen. In the main, Pitt and his asso- 
ciates followed the line of argument which had been put 
forth and furnished them by the Americans. 

After the restoration of the Stuarts there was an al- 
most uninterrupted series of acts on the part of the 
parent government put forth with a view of bringing 
all the American colonies under the complete control of 
the crown and Parliament. Until about 1680 most of 
the colonies were undisturbed in the administration of 
justice through their own courts. But from that time 
the crown was constantly asserting its inherent right to 
hear and determine appeals from the colonial courts. 
This was firmly resisted in most of the colonies, and suc- 
cessfully so in a number of them, for many years. From 
about 1700 most of the colonies gave way to the royal 
will and appeals to the King in council were allowed in 
certain cases. By means of these appeals decisions were 
made, and constructions were given to their statutes, 
which greatly changed the fundamental laws of the 
colonies. 

I need not further particularize, but, especially after 
the accession of Charles II down to the American Revo- 
lution, a constant contest was going on between the 
British and the colonial governments over a variety of 
questions, including disputes as to the regulation of 



OF THE UNITED STATES 17 

commerce, the support of royal colonial officers by per- 
manent and fixed salaries to be raised by the colonies, 
appeals from the colonial courts to the home govern- 
ment, the right of the colonists to the same judicial 
privileges as Englishmen at home, including the right 
of the writ of habeas corpus, and the claim of the home 
government to a right to legislate for the colonies in all 
matters. These contests, instead of drawing the parties 
nearer together, were constantly estranging the con- 
testants, and making a reconciliation practically im- 
possible. 

These contests of which I have spoken extended, in a 
greater or less degree, to all the colonies, and the dis- 
cussions respecting them were participated in by all the 
leading colonists, and affected the thought and action of 
the whole body of Americans. They not only had an 
influence in shaping the government of the time, but 
they so entered into the composition of American public 
sentiment that all political action thereafter taken was, 
in a great degree, controlled by it. The American con- 
ception of the rights of the people thus instilled into 
their very life-blood at last found permanent expression 
in the framing and adoption of the Constitution of the 
United States. 

VIRGINIA . 

When the First Colony of Virginia left England in 
the latter part of 1606 it was to found a colony in the 



18 CONSTITUTIONAL HISTORY 

control and management of which they had no voice 
whatever. Not even the London Company, which sent 
it out, could make for it any law or regulation without 
permission of the King. James I could not be quite 
absolute in the government of England, but his desire 
for absolute rule was to be given full sway in Virginia. 
Full legislative as well as executive authority remained 
with the King. 

Two years after the settlement of Jamestown the Lon- 
don Company was granted a new charter which con- 
ferred upon the company the power which in the first 
had been reserved to the King. Executive and legisla- 
tive authority was to be exercised by the council in 
London, which was elected by the shareholders. 

In the third charter, granted two years later, in 1612, 
supreme power was granted directly to the whole com- 
pany, and not to the council, as theretofore. When 
George Yeardley came over as governor, in 1619, he 
brought with him authority from the company to con- 
fer political rights on the colonists. Whereupon an 
assembly, composed of representative burgesses from 
each plantation in the colony, was called to meet in 
Jamestown in July, 1619. This was the first repre- 
sentative assembly convened in America. In July, 1621, 
the company granted the colony a written Constitution 
by which the people were secured in substantially all the 
rights of Englishmen at home, both in the administra- 
tion of government and in the security of person and 
property. We can hardly overestimate the importance 



OF THE UNITED STATES 19 

of this document as a precedent for constitutional 
government in the New World. 

In 1624, by a judgment of the court of king's bench, 
in a proceeding in quo warranto, the liberal charter 
which King James had granted the London Company, 
and which he had in vain sought to induce the company 
to voluntarily surrender, was declared forfeited. His 
death soon after this event prevented the King from 
exercising any of those arbitrary powers which he prob- 
ably had in view, and his son, Charles I, on ascending 
the throne, had so much trouble with affairs at home 
that he exercised less power abroad than he might have 
done under other circumstances. Notwithstanding this 
resumption of full royal authority, the rights and 
privileges of the colonists were not in any way inter- 
fered with. Their assembly continued to meet, and 
under the experience they were acquiring they grew 
more independent and outspoken, and put forth a series 
of legislative enactments that does credit alike to their 
intelligent grasp of the colony's needs and to the spirit 
of free men who were to be followed by an illustrious 
posterity. 

When Parliament assumed the government of Eng- 
land and came to deal with the colony which had been 
adhering to the royal cause, it guaranteed full English 
liberty to the colonists whose business was permitted to 
continue under the control of their own assembly. But 
no action was taken on the colonists' request that no 
taxes nor customs should be levied, nor forts erected. 



20 CONSTITUTIONAL HISTORY 

without their representatives' consent. Control over 
these matters had for some years been exercised by the 
assembly, had been by it claimed as a right, and had 
been acquiesced in by the royal government. During 
the protectorate of Cromwell suffrage was made uni- 
versal to all who paid a poll-tax. The colonists were 
allowed to elect their executive officers as well as their 
legislators. 

After the restoration of the Stuarts the popular 
party, which had been in control of the colonial govern- 
ment, was supplanted by the element possessing more of 
an aristocratic tendency. Suffrage was greatly cur- 
tailed and popular elections could hardly be said to pre- 
vail. The Anglo-Saxon tendency to personal liberty 
which allowed the child of a slave mother to take the 
condition of the free father was changed by statute, 
which adopted the harsh Roman rule that the condition 
of the offspring followed that of the mother, and thus 
placed the child of a slave mother in the ranks of bond- 
men. 

In the colony generally the rule of primogeniture pre- 
vailed, although a different law of inheritance sprang 
up in certain counties. The Anglican Church was the 
religion of the state and was supported at public 
charge. There was no public provision for popular 
education. In 1661 Lord Berkeley, the royal governor, 
thanked God that Virginia had no free schools nor print- 
ing-presses, and he hoped she would not have for hun- 
dreds of years to come. A favored aristocracy was a 



OF THE UNITED STATES 21 

natural product of the system of civilization developed 
in this colony. 

Of course many changes in government, as well as in 
public sentiment on various questions, were made be- 
tween the time of which I have spoken and the American 
Revolution. But nothing took place which materially 
modified the trend of constitutional history. What I 
have already stated in respect to the government of this 
colony will fairly show her important place in the de- 
velopment of constitutional government in this country. 

MARYLAND 

At the time when religious controversy ran so high 
in England Lord Baltimore, who had for years been 
deeply interested in the settlement of America, and who 
had himself planted a colony in Newfoundland, visited 
Virginia to see about selecting a more favorable site for 
his colony. His religious convictions would not allow 
him to take the oath of supremacy which the laws of 
England and the instructions to the Governor of Vir- 
ginia required of the inhabitants of that colony ; hence 
there could be no peaceable settlement of his colony 
within the territory of Virginia. But the charter of the 
London Company had now been forfeited and the King 
claimed complete proprietorship of the New World, not- 
withstanding the land may have been embraced within 
the grant of an old charter. There was, therefore, no 
reason, from the King's standpoint, why he might not 



22 CONSTITUTIONAL HISTORY 

bestow on this worthy lord the right of establishing a 
colony in a more favorable clime. 

Under date of June 20, 1632, the charter which had 
been intended for his father was given to the younger 
Lord Baltimore, making him and his heirs full pro- 
prietors of the province of Maryland. By the terms 
of the charter the King relinquished and renounced for- 
ever, for himself and successors, the right to impose any 
impost, custom, or tax upon the inhabitants of the prov- 
ince. Nor was the royal consent required to the validity 
of provincial legislation or the proprietor's appoint- 
ments to office. The charter required the approbation 
of a majority of colonists, or their deputies, for the 
validity of legislation. Large powers were given the 
proprietor in the way of establishing, by ordinance of his 
own creation, aristocratic institutions, including at least 
some features of the feudal system. But the provision 
for independent and supreme legislation, and absolute 
control over taxation, by a colonial legislature, was the 
redeeming feature of this charter. 

In March, 1634, the colony of Maryland was for- 
mally planted. In February of the following year it was 
convened for legislation, and all the freemen in the 
colony seem to have been present and taken part in the 
business. In January, 1638, the second session of the 
legislature was held, but this time made up of represent- 
atives chosen by the settlers. This legislature acted 
with a bold and liberal spirit in the interest of free and 
independent legislation. It refused to ratify a code of 



OF THE UNITED STATES 23 

laws presented to it by the proprietor, but asserted the 
inherent right of legislation as residing in itself. The 
third session was held in 1639, and was memorable for 
the declaration of rights which it adopted, somewhat 
irregularly, it is true, claiming for the inhabitants of 
the colony the liberties enjoyed by Englishmen at home 
by virtue of her laws, and asserting for the assembly 
all the power exercised by the House of Commons in Eng- 
land. Subsequent sessions maintained and strengthened 
the rights of representative government as thus an- 
nounced. In 1650 an act was passed giving legal status 
to what had been practised for several years, of a legis- 
lature composed of two houses; but in 1660 the as- 
sembly refused to recognize the legality of an upper 
house and asserted for itself absolute right of inde- 
pendent legislation. 

The feudal policy provided for by the charter, and, 
in a measure, established in Maryland, was so contrary 
to the spirit of personal liberty which filled the air in 
every American colony that its extinction was only a 
question of time. The wise, mild, and, in many respects, 
liberal government of Lord Baltimore did much to satisfy 
the people, and probably extended the term of proprie- 
tary government much beyond what it would otherwise 
have been. 

The religious character of the proprietary did not 
save him from the despotic hand of James II. The 
determination of this monarch to bring all the American 
colonies under complete royal control led him to cause 



24 CONSTITUTIONAL HISTORY 

the charter of this colony, as well as those of others, to 
be forfeited under a proceeding by quo warranto. 



PLYMOUTH 

By a half century of persecution at home and a dec- 
ade of suffering in Holland, the Puritans were pre- 
paring for the ordeal they were to face in America. The 
only concession they could obtain from James I was the 
privilege of being forgotten. Without royal promise 
of protection or charter for a home or a government, 
they bound themselves for a term of seven years under 
the severe terms of a mercantile partnership in order to 
secure passage to the New World. As they were sent 
out by no company, and were without government or 
protection, the colonists, before leaving the Mayflower, 
in November, 1620, entered into a written compact be- 
tween themselves, which was signed by the head of every 
family on board, whereby they combined themselves into 
a body politic with a declared purpose to enact "such 
just and equal laws, ordinances, acts, constitutions and 
ofiices, from time to time, as shall be thought most con- 
venient for the general good of the colony." 

Supreme power was conceded to be in the people, who 
transacted their business in a general meeting in which 
every person had a vote, and no law could be enacted but 
by their consent. Pure democracy prevailed at Plym- 
outh for eighteen years. It was not till 1639 that 
representatives from the several towns met in general 



OF THE UNITED STATES 25 

court. Without warrant of royal authority they ex- 
ercised as firm a government as was found in chartered 
colonies. 

When William and Mary gave a new charter to 
Massachusetts in 1691 in place of her original charter 
which James II had caused to be forfeited, they included 
Plymouth and other settlements with Massachusetts 
Bay. From this time the original Pilgrim colony 
formed a part of the leading colony in America. 

MASSACHUSETTS 

The London Company and the Plymouth Company 
had originally been formed under one charter, the one 
to lead forth the First Colony of Virginia, to be located 
in the south, and the other to plant the Second Colony 
of Virginia, farther north. The Council of Plymouth 
for New England was incorporated under a new charter 
in 1620 and given as its absolute property the territory 
from the fortieth to the forty-eighth parallel of north 
latitude, extending from ocean to ocean, with unre- 
stricted power of legislation and government. Under 
this charter the company made many grants, some of 
which resulted in establishing small settlements along 
the coast between Cape Cod and the St. Lawrence, In 
1628, the Council of Plymouth sold a tract from 
Charles River on the south to the Merrimac on the 
north, and extending indefinitely westward, to a party of 
gentlemen, who thereafter associated others with them 
and became the Massachusetts Bay Company. A party 



26 CONSTITUTIONAL HISTORY 

went out the same year and founded the first permanent 
settlement in Massachusetts at Salem. 

In 1629, at the request of the Plymouth Company, 
Charles I granted a charter to the Governor and Com- 
pany of Massachusetts Bay, in New England, covering 
the territory embraced in the grant of 1628, the govern- 
ment of which was given to a governor, deputy, and 
eighteen assistants, to be elected annually by the free- 
men or members of the company. All the freemen were 
to meet in general assembly four times a year, but the 
place of meeting was not named. To the general court 
thus assembled was given authority to admit an un- 
limited number of new members, to elect officers, to make 
laws for the government of the planatation, but the 
same must not be repugnant to the laws of England. 
This left the liberty of the subject in the hands of the 
company, and not of the crown or Parliament. A few 
weeks after the charter was granted a party of emi- 
grants set sail and joined the settlement already estab- 
lished at Salem, of which John Endicott now became the 
first governor. 

In August of the same year in which the charter was 
granted, by a vote of the company in England, it was 
decided to transfer the place of meeting of the general 
court from England to America. Thus the charter and 
government became American institutions. Before 
sending out the next lot of emigrants and the transfer 
of the charter to America the company elected John 
Winthrop governor. 



OF THE UNITED STATES 27 

In June, 1630, Winthrop and his colony arrived at 
Salem, but soon thereafter transferred the seat of 
government to the vicinity of Boston. In October of 
that year the first general court of that company held 
in America assembled at Boston. Many new members 
were admitted into the company. The old officers were 
re-elected. In 1634 the general mode of voting was 
changed from a show of hands to that by ballot. The 
first instance of voting by ballot in America was in 1629 
for the election of pastor and teacher for Salem by the 
emigrants who had recently arrived. 

Almost immediately the need of a written constitution 
was felt and in May, 1635, a commission was appointed 
to prepare one, but its members were unable to agree 
and nothing came from this effort. The government 
having sent out requests therefor, the various towns, in 
1638, sent in suggestions as to what they desired em- 
bodied in their fundamental law. In December, 1641, 
after three weeks' deliberation and discussion, the gen- 
eral court adopted what they designated "The Body of 
Liberties," and which really amounted to a written con- 
stitution. Prior to this there had been very little done 
in this colony in the way of legislation. The officers had 
exercised a very large discretionary power, which, per- 
haps, they had not seriously abused ; still, it had caused 
distrust among the people, and the adoption of a written 
and specific rule for the government of all was the cause 
of general rejoicing. 

This document opened with a bill of rights, which 



28 CONSTITUTIONAL HISTOEY 

declared that no man's life, person, honor, family, or 
estate should be taken away or endangered except by 
virtue of some express law publicly proclaimed, or, in 
case of defect of law, according to the principles of the 
Word of God. 

By the provisions of this constitution there were to 
be annual elections for choosing all their officers, in 
which all freemen had a right to participate. Deputies 
to the general court could be chosen by the freemen of 
each town from their ow^n number, or from the ablest 
and most gifted elsewhere, as they might think best. 
The general court could not be adjourned or dissolved 
without its own consent. Each town was permitted to 
make its own by-laws for the government of its local 
affairs, so far as they did not conflict with the public 
law or the general interest. Selectmen were elected an- 
nually by the town to manage its affairs. In both civil 
and criminal cases the parties might agree on a trial 
by the court or by a jury. Not only was the right of 
petition guaranteed, but any freeman might appear in 
person and present to the general court or the town 
meeting, in writing or by motion, any matter he 
chose. The title to all land was declared free and 
alienable. 

In reference to slavery it was declared that "there 
shall never be any bond slavery, villanage, or captivity 
among us, unless it be lawful captives taken in just war, 
and such strangers as willingly sell themselves or are 
sold to us. And these shall have all the liberties and 



OF THE UNITED STATES 29 

Christian usages which the law of God estabhshed in 
Israel concerning such persons doth morally require." 

Provision was also made for free religious worship 
to all who were orthodox and whose lives were not scan- 
dalous. 

Of course the customs relating to public worship, the 
teaching of children, the town meetings, and other 
matters relating to the general life of the people, and 
which had been practised from the first settlement, re- 
mained in operation unaffected by any written law. The 
town meeting was from the first the well-established 
mode of conducting all local affairs. All inhabitants 
met and took part in this meeting. 

In 1644 the general court was divided into two 
houses — the assistants or magistrates, and the deputies 
from the towns. 

About this time commenced a series of disputes which 
for a short period threatened trouble. The relation of' 
the Church to the State, the disputed authority of the 
magistrates, the desire on the part of some for a more 
democratic government, and other causes, led to a contest 
between opposing factions which lasted for some time. 
The only feature of this trouble which is material to 
our inquiry, and the only one to which I shall refer, 
was the attempt on the part of some to appeal from the 
action of the colonial government to the government of 
the English Parliament. Gorton, one of the disaffected, 
went to England and procured an order from the par- 
liamentary commission requiring certain things of the 



30 CONSTITUTIONAL HISTORY 

colonists, and assuming that they had the right to 
reverse the decision of the colonial court. When this 
order came to Boston all contention between local 
factions ceased, and both parties rallied to the support 
of the colonial government. In November, 1646, the 
general court met to determine what was to be done, 
and by a practically unanimous vote they decided that 
the citizens of Massachusetts owed no allegiance to 
England except such as subjects of a feudal lord owed 
the sovereign, and that, as they understood it, did not 
include the exercise of legislative or judicial jurisdiction 
over them by the parent government. They sent a 
remonstrance to Parliament against its action, asserting 
their chartered rights, compared their relation to Eng- 
land with that which she had formerly sustained toward 
Rome as the head of the Church, and her refusal to be 
governed by orders from Rome. While conceding the 
superior ability of Parliament, they denied that said 
body was as able to intelligently understand and regu- 
late their affairs as were they who were on the ground 
and knew the conditions more perfectly. 

Besides sending this remonstrance to England the 
general court refused to allow any appeal to be taken 
from the colonial court to those of England, nor would 
they in any way acknowledge any right of England to 
interfere in their internal affairs. 

Edward Winslow, whom the colonists sent to England 
as their agent, expressly denied English jurisdiction, 
and said to the parliamentary commission : "If the Par- 



OF THE UNITED STATES 31 

liament of England should impose laws upon us, having 
no burgesses in the House of Commons, nor capable of 
summons by reason of the vast distance, we should lose 
the liberties and freedom of the English indeed." 

After full discussion the parliamentary commission re- 
plied to the colonists' remonstrance: "We encourage no 
appeal from your justice. We leave you with all the 
freedom and latitude that may, in any respect, be duly 
claimed by you." 

The triumph of the colonists was complete. Their 
assertion of independence in government was conceded. 
A safe and important precedent was set for the follow- 
ing century, and a sure step was taken toward political 
freedom. 

Soon after this, when the Long Parliament had 
abolished royalty, it invited Massachusetts to receive a 
charter from it. This the colonists respectfully, but 
firmly, refused. And when, with no concessions being 
expected from the colony, some of the English friends 
of Massachusetts offered to secure aid for the colony 
from the Long Parliament the offer was rejected for the 
reason that "if we should put ourselves under the pro- 
tection of the Parliament we must then be subject to all 
such laws as they should make, or, at least, as they 
might impose upon us. It might prove very prejudicial 
to us." 

In 1652 a sovereign act was performed by the colony 
in establishing a mint, and here silver shillings were 
coined. 



32 CONSTITUTIONAL HISTORY 

On the restoration of the Stuarts, in 1660, the royal 
authority again began to be asserted over the English 
colonies. The navigation act was the first measure 
seriously interfering with colonial rights and interests. 
By means of this the colonial productions, manufac- 
tures, internal traffic, and foreign and domestic com- 
merce were, to a large extent, influenced and controlled 
for the advantage of English merchants and to the 
detriment of the colonists. In addition to this the royal 
government was, from this time on till the Revolution, 
almost continually asserting her right to bind the colo- 
nists by her laws. 

In 1660 the general court appealed to Charles II to 
continue their civil and religious liberty, and, in April, 
1661, they published a declaration of rights, claiming 
their exclusive right to elect their own officers and de- 
clare their powers, to exercise, through their executive, 
legislative, and judicial departments, all the powers of 
government, with no right of appeal from their deci- 
sions, to reject any interference on the part of the 
English Government with their colonial government or 
laws. With these rights conceded or established there 
would have remained little for their allegiance to 
attach to. 

In 1662 Charles II made a number of demands on 
the colony in reference to the elective franchise, the en- 
actment of laws, the administration of justice, and other 
matters affecting their relation to the home government. 
Some of these the colony complied with in so far as she 



OF THE UNITED STATES 33 

could without seeming to concede the right of the King 
to control her affairs, but she refused to concede his 
right to direct her to perform any of these acts. From 
this time the relation between the two governments be- 
came more and more strained. Whether attempting to 
exercise it or not, the English Government was con- 
stantly asserting its right both to legislate for and to 
govern the colony. The colonists were just as strongly 
asserting their entire independence, and that England 
possessed only such authority over them as was recog- 
nized in their charter. 

Royal commissioners were sent over whom the colony 
refused to accept or obey. When the colonists sent their 
remonstrances to England against the attempt to thus 
govern them even the friends of Massachusetts in Eng- 
land could not comprehend why they were so excited over 
the affair, since they made no complaint against the char- 
acter of the commissioners. They did not see, what was 
plain to the colonists, that the whole doctrine of colonial 
subjection to English rule was involved in the question 
whether or not they were bound to allow these royal 
commissioners to inquire into the colonial matter of 
administration. 

The inefficiency of the government of Charles II en- 
abled the colonists to withstand the royal purpose much 
longer than they could otherwise have done. Repeated 
demands were made on the colonists for a surrender of 
their charter, but these were always firmly refused. 
Finally, in 1683, a writ of quo wurranto was issued 



34 CONSTITUTIONAL HISTORY 

against Massachusetts, and during its pendency another 
effort was made to induce the colony voluntarily to yield. 
The general court was convened and the question fully 
discussed. The upper house, consisting of the governor 
and assistants, voted to yield to the royal demands. But 
in the house of delegates it was argued that if the peo- 
ple lost their liberties it was better that they be taken 
from them forcibly than that they should be surren- 
dered voluntarily, and they refused to yield. In June, 
1684, the judgment of the court was conditionally 
entered, which was soon made final, dissolving and an- 
nulling their charter. Before the record of this pro- 
ceeding reached Boston, Charles II had been succeeded 
on the throne by his brother, the Duke of York. 

The government of James II over the royal colonies 
was as arbitrary as that which he exercised in England. 
When the news of his exile reached America Massa- 
chusetts at once rose in rebellion, imprisoned the royal 
governor, and set up the government as it existed when 
her charter was declared forfeited. Had her charter 
been taken from her by force and not by legal process, 
the new sovereigns would undoubtedly have allowed her 
to resume and continue her government under it with- 
out molestation. But as it had been annulled by decree 
of court it could no longer be said to have an existence; 
hence it became necessary to provide a new basis for 
government. The colonists pleaded for a restitution of 
their old charter, or rather for a new one containing 
the provisions of the old; but this King William would 



OF THE UNITED STATES 35 

not grant. A new charter was issued to the colony in 
1691 granting them partial self-government, but re- 
serving to the crown the appointment of her governor, 
and some other of her executive officers, and also a royal 
veto on colonial legislation, as well as a right to appeal 
to the King from the acts of the colonial courts in cer- 
tain cases. 

In May, 1692, the royal governor, with the new 
charter, arrived in Boston. Under the charter the dele- 
gates to the assembly were elected by the people. When 
the general court met it was found that these delegates 
were as bold and independent as their predecessors had 
been. A bill of rights now passed the legislature and 
received the assent of the royal governor. This enact- 
ment asserted the exclusive right of the colony to levy 
taxes, all taxes levied without their assent to be un- 
lawful, and the right of jury trial. The same year the 
town meetings, which had been prohibited under the 
former reign, were restored. 

CONNECTICUT 

On January 14, 1639, the three principal towns in 
Connecticut, viz., Windsor, Hartford, and Wethersfield, 
met and voted to unite in forming a commonwealth for 
their common benefit. A written Constitution was 
adopted providing that the civil officers should be 
elected by ballot by the whole body of freemen. The 
general court was made to consist of the governor, mag- 



36 CONSTITUTIONAL HISTORY 

istrates, and representatives from the towns. All resi- 
dents on being admitted to the body of freemen were 
required to take an oath of allegiance to the common- 
wealth. Thus was established an independent republic, 
for the settlements had been formed without any char- 
ter from England, and the government was now 
established without warrant or authority from any out- 
side power. This was the first formal written American 
constitution prepared and adopted by the people for 
their own government. During this time the New 
Haven plantation was working under a government of 
its own formation, but without a formal constitution. 
This government of the Hartford colony, independent 
of all English authority, continued till 1662, when it 
was thought best by the colonists to strengthen them- 
selves by the aid of a chartered government. Through 
the intercession of the younger Winthrop, and other 
persons of influence whom he enlisted in their behalf, 
Charles II granted a charter, joining into one colony 
the Hartford and New Haven plantations, with abso- 
lute right of self-government; the executive, legislative, 
and judicial branches being each free in its appropriate 
department. This charter only gave the royal sanction 
to what the colonists had from the first practised. 

In local affairs here, as throughout New England 
generally, each settlement was a small democracy in 
which there was absolutely free self-government. Every 
citizen was free to take part in the town meetings, in 
which all the local affairs were discussed, the local taxes 



OF THE UNITED STATES 37 

imposed, and the local policy to be pursued determined 
upon. 

Both Charles II and James II sought to procure from 
the colonists a surrender of their charter, but this the 
colonists strenuously refused to concede. In April, 
1687, a writ of quo warranto was issued, whereupon 
the colonial authorities made certain reports and repre- 
sentations which the King construed into a consent to a 
surrender of the charter; in consequence of this the 
quo warranto proceedings were not pressed to judg- 
ment. In October of that year Edmund Andros, the 
royal governor of all New England, appeared before 
the colonial assembly and demanded a formal surrender 
of the charter. During the parley between the governor 
and the colonial officials the charter was carried away 
and secreted. Before any further definite action was 
taken on this subject James II was in exile, and there- 
upon the colony at once resumed government under the 
charter. It was admitted in England that these in- 
voluntary acts on the part of the colonists did not 
amount to a surrender, and consequently, as there had 
been no judicial forfeiture entered, the charter was still 
in full force. 

RHODE ISLAND 

The Providence and Rhode .Island plantations had 
been started by Roger Williams and those who, in sym- 
pathy with him, were seeking the privilege of enjoying 
religious as well as political liberty, as independent 



38 CONSTITUTIONAL HISTORY 

settlements, under no sanction of any government and 
without protection from any outside power. Here 
sprang up a pure democracy where each individual had 
as many rights as any other, and where the combined 
power of all did not seek to interfere with the personal 
views or conscientious convictions of anyone. 

But as the settlers were not free from outside dangers 
they conceived it would be advantageous to procure 
recognition from the English Government. In March, 
1644, Roger Williams, who had gone to England for 
that purpose, secured from the Long Parliament a 
charter for the Providence and Rhode Island planta- 
tions, which gave them full power to rule themselves 
under such form of civil government as they might 
choose. The equality of all men, and their right to take 
part in the public assemblies, was recognized. The 
early meetings of this colony — being the expression of 
a pure democracy — were frequently turbulent, but the 
public good was usually sought and found by the popu- 
lar will. Government continued to be administered in 
this fashion under this parliamentary charter until after 
the restoration of the Stuarts. 

In 1663 this colony received from Charles II a 
charter granting, if possible, more privileges to the 
colonists than had been conferred on those of Connecti- 
cut the year previous. In addition to securing to the 
colonists independent self-government the charter pro- 
vided that "No person within the said colony, at any 
time hereafter, shall be any wise molested, punished, dis- 



OF THE UNITED STATES 39 

quieted, or called in question for any difference in 
opinion in matters of religion." In May, 1664, the 
general assembly enacted this principle, expressed in 
substantially the same language, into a colonial law ; 
and one year later it asserted that personal liberty to 
worship God as each person thought best had been main- 
tained in the colony from its very beginning. In 1665 
the general assembly was divided into two houses. 

The efforts of Charles II and James II to bring all 
the colonies under royal control extended to Rhode Isl- 
and with the rest. On a refusal to surrender her charter 
a writ of quo warranto issued against Rhode Island in 
1687. A report made to the King was taken by him 
as a concession on the part of the colony to his request 
for a surrender of her charter; thereupon the quo 
warranto proceedings were discontinued without going 
to judgment. When news reached America that the 
King had been dethroned the colonists at once resumed 
the old charter government, nor were they disturbed 
therein by the new sovereigns. 

NEW ENGLAND TOWN MEETINGS 

The New England colonies established and maintained 
a system of local self-government to an extent unknown 
in other colonies. Perhaps the system of government 
thus inaugurated has had as much to do in making com- 
plete local self-government a permanent and prominent 
factor in American constitutional government as any ele- 



40 CONSTITUTIONAL HISTORY 

ment which has entered into the formation of our politi- 
cal system. 

In each of the New England colonies, from the very 
commencement of their history, it was the custom of the 
people in each community to assemble annually, and at 
such other times as their needs and convenience seemed 
to make advisable, in public town meeting to discuss and 
act on such measures as affected their interests. All free- 
men were allowed to, and in practice did, take part in 
these meetings. 

In the meetings thus constituted the people appointed 
their ministers, regulated their church affairs and school 
matters, attended to all their municipal business, elected 
and instructed their representatives, discussed and acted 
on all matters affecting their freedom, their business in- 
terests, and every matter in which they were generally 
interested. 

It was the Boston town meeting that voiced the sen- 
timents of the liberty-loving inhabitants of Massachu- 
setts when no other method of communication was left 
open to them. And it was this meeting which the 
British ministry determined to suppress, and this system 
of government which that ministry made every effort to 
overthrow. In 1774, by an act of Parliament, Boston 
was allowed but two town meetings a year without 
express permission from the governor, and these were 
to transact no business except to elect officers. Other 
repressive measures of a similar character were also 
attempted. 



OF THE UNITED STATES 41 

The liberties of any people are reasonably well as- 
sured so long as such a system of local self-government 
and expression of public sentiment can be maintained 
as was embodied in the plan of the New England town 
meeting. Its influence in favor of American liberty was 
inestimable. 



THE OTHEE COLONIES IN GENERAIi 

I need not refer in detail to the settlement and devel- 
opment of the governments in the other colonies. The 
elaborate constitution prepared by John Locke for the 
Earl of Shaftesbury and his associates, for the govern- 
ment of Carolina, had no bearing on the permanent con- 
stitutional development of the country, and need not be 
discussed here. In spite of the action of the proprie- 
taries looking to the establishment of feudalism and an 
aristocratic government, the people insisted on taking 
matters into their own hands to a considerable extent, 
and some features of popular government were admitted 
into the administration of colonial affairs in that colony. 

The Dutch of New York soon learned some ideas of 
self-government from their contact with the New Eng- 
land colonists, and soon after 1640 the people began to 
exercise some influence in the government. Near the 
close of 1653 the first assembly in ]^ew Netherlands was 
held. It met without authority of law, but asserted its 
right to deliberate on the condition of the country. The 
assembly adopted a petition to the States-General which 



42 CONSTITUTIONAL HISTORY 

was so bold in its tone that Governor Stuyvesant soon 
dissolved the body. In 1663, and again the following 
spring, popular assemblies were held with the approba- 
tion of Governor Stuyvesant. 

On the surrender of New Netherlands to the English 
in 1664 the people were promised popular rights, but 
all legislative, executive, and judicial authority con- 
tinued to be exercised by the governor and other officials 
whom he appointed. However, in 1683, the governor 
convened a legislative assembly which declared for all the 
rights and privileges belonging to Englishmen. Its en- 
actments were similar to those of Massachusetts and 
Virginia. In 1691 an assembly was called by the gov- 
ernor sent over by William and Mary. This body de- 
clared all the laws of prior assemblies null and void, and 
then put forth a declaration in which they asserted the 
rights of the colonists to be such as are given by Magna 
Charta and are enjoyed by Englishmen at home. It 
then enacted a series of laws based on these liberal prin- 
ciples. From this time to the Revolution there was 
almost constant contest between the representatives of 
royalty and the people over the right of the latter to 
take a controlling hand in the matter of government. 

New Jersey and Delaware underwent most of the 
vicissitudes in respect to government that were ex- 
perienced in New York. When the Duke of York 
granted the province to a number of proprietors a liberal 
government was promised. But nothing of the kind was 
obtained till the territory came into the hands of the 



OF THE UNITED STATES 43 

Quakers, In 1677 the Quaker proprietors sent a written 
constitution to the few settlers then inhabiting their 
territory which contained as liberal provisions as could 
be desired. Freedom of conscience and religious opinion, 
no slavery, trial by jury, no imprisonment for debt, suf- 
frage by ballot, education of orphans at public charge, 
were among the privileges granted. In 1681 the first 
Quaker legislative assembly ever held was convened. 

In 1681 William Penn was made absolute proprietor 
of Pennsylvania, and in 1683 he submitted a constitu- 
tion to the colonists for adoption, which provided for 
free government by the people. There was not always 
complete harmony between the proprietary and the 
colonists. But there was never any attempt on the part 
of the former to deprive the latter of a fair share in the 
government. Delaware being, for a time, united with 
Pennsylvania, had substantially the same system of 
government. ■- 

ATTEMPTS AT UNION BEFORE THE REVOLUTION 

In May, 1643, Massachusetts, Plymouth, New Haven, 
and Connecticut entered into a confederation under the 
name of the United Colonies of New England. The 
articles of confederation were a sort of constitution and 
bound the colonies in a perpetual ]eague, offensive and 
defensive, for the general welfare, including the preserv- 
ing and the propagating of truth and the liberty of the 
gospel. Each colony was to choose annually two com- 



44 CONSTITUTIONAL HISTORY 

missioners, all of whom were to be church members in 
good fellowship, who were to conduct the business of the 
confederacy. The rights reserved to each colony and 
the power conferred on the commission had much re- 
semblance to those afterward enumerated in the Articles 
of Confederation retained by the colonies and given to 
Congress. This confederacy lasted forty years. 

The first use of the term congress, as applied to the 
meetings of deputies from the several colonies, is said to 
have been in a proposition prepared by the English 
Government during the reign of William and Mary, for, 
but perhaps never submitted to, the American colonies, 
whereby they were requested to send two deputies from 
each colony to meet in "general congress," under the 
presidency of a commissioner appointed by the King, 
to adjust all matters of difference between the colonies, 
and to consider ways and means to support the union 
and maintain the safety of the colonies against their com- 
mon enemies. 

In September, 1753, the British Secretary of State 
requested the commissioners from the several colonies, 
who were to meet and form a treaty with the Six Nations, 
to also form a union among the colonies for their mutual 
protection and defence against the encroachments of the 
French. In pursuance of this recommendation deputies 
from New Hampshire, Massachusetts, Rhode Island, 
Connecticut, New York, Pennsylvania, and Maryland 
met at Albany in June, 1754. After concluding a treaty 
with the Indians the commissioners proceeded to consider 



OF THE UNITED STATES 45 

a plan of union. From a number of plans proposed the 
meeting selected the one prepared by Dr. Franklin as 
the basis of their action. With some amendments this 
plan was finally adopted. It was proposed by this that 
parliamentary sanction be given to a general govern- 
ment for all the English colonies in America. The 
crown was to appoint a president-general and the colo- 
nies were to send deputies to a general council which was 
to meet at least once a year. This body was to make 
laws for carrying out the business intrusted to them 
affecting the general interests, to levy and collect taxes 
in a manner that would be equal and just, and to do 
those acts which naturally pertained to their super- 
vision of colonial affairs. This scheme proved unac- 
ceptable to either England or America. The British 
Government thought it left too much power in colonial 
hands, and the colonies believed it placed too much au- 
thority in the hands of the King. 

The first colonial congress held in America assembled 
in New York on the first Tuesday in October, in 1765, 
on an invitation sent out by Massachusetts, for the pur- 
pose of consulting, and to address the King and Parlia- 
ment for relief. The stamp act received the royal assent 
on March 22, 1765. The proposition of Lord Grenville 
to introduce this measure was communicated by him to 
the agents of the American colonies with a view of ob- 
taining, if possible, their consent to the measure. When 
the news reached America it caused the most profound 
feeling of anxiety that had ever been produced by any 



46 CONSTITUTIONAL HISTORY 

measure of the English Government Nearly every 
colony took strong ground against the act as an in- 
fringement of its chartered rights. Most of them 
sent petitions and remonstrances to Parliament against 
the passage of the act. Some of these petitions Parlia- 
ment refused to receive. 

As soon as the news of the passage of the act reached 
America the people commenced to plan for resistance. 
Under the lead of Patrick Henry the Virginia house of 
burgesses was the first to lead off by the passage of a 
series of resolutions which boldly attacked the English 
policy and asserted American rights. Before news of 
this action reached the northern colonies Massachusetts 
had issued the call for a colonial congress to assemble in 
New York on the first Tuesday in October. In two or 
three of the colonies the legislatures were not in session 
and the governors refused to convene them for the pur- 
pose of appointing delegates. But Massachussetts, 
Rhode Island, Connecticut, New York, New Jersey, 
Pennsylvania, Delaware, Maryland, and South Carolina 
sent commissioners. These commissioners came with 
various instructions, but they all tended toward the end 
of, in some way, obtaining redress of grievances and re- 
lief from this tyrannical measure. On October 19, 1765, 
this congress, almost unanimously, adopted a declara- 
tion of rights and a statement of grievances, and soon 
thereafter prepared and adopted petitions to be sent to 
the two houses of Parliament and an address to the 
King. 



OF THE UNITED STATES 47 

This congress was composed of some of the most 
eminent men in America, and the state papers 
by it sent out will take rank with any that have 
been prepared by any body of men since then^. It 
is not the province of this work to discuss them, but 
they are worthy the study of every patriot. They cer- 
tainly led to the repeal of the stamp act. 

There was no general meeting of the several colonies 
between 1765 and 1774. The feeling of rejoicing over 
the repeal of the stamp act which followed the meeting 
of the first congress was of but short duration. Dis- 
cerning minds were aware all the time that Great Britain 
had not surrendered her claim of supremacy over the 
American colonies. The renewed effort to enforce the 
navigation acts, the tax on tea and other imports, the 
introduction of foreign soldiers to enforce the laws, all 
pointed, as did many other acts of the British Govern- 
ment, to a firmly adopted policy on the part of the min- 
istry to exercise legislative authority, as well as executive 
and judicial control, over the colonies. The course 
which events took brought this issue prominently for- 
ward in Massachusetts sooner than in the other colonies, 
but all saw that what the government should accomplish 
in Massachusetts it would finally carry out in all the 
colonies. 

When it became evident in the spring of 1774 that if 
any successful resistance to British aggression was to be 
made it would require the united efforts of all American 
patriots, Massachusetts again took the lead and ap- 



48 CONSTITUTIONAL HISTORY 

pointed a second American congress to assemble in 
Philadelphia on September 5, 1774. All the colonies 
except Georgia sent delegates to this congress. 

We have now arrived at a period in our history when 
nationality really commences to take form. Prior meet- 
ings had, in a measure, prepared the colonists for under- 
standing each other's needs, and both the advantages 
and the practicability of united action. But now such 
action is to be undertaken on a scale that was surprising 
to the mother country, and which was to result in the 
formation of a new nation. 



or THE UNITED STATES 49 



II 

PERIOD OF THE REVOLUTION 

No one can write a treatise on constitutional history 
in this country without being brought face to face with 
the question of sovereignty ; he cannot avoid discussing 
it if he would. While writers differ in opinion as to 
where the people have placed, and to whom they have 
committed, the exercise of the sovereign power with which 
they have for the time being parted, no good reason ex- 
ists why the question should not be discussed as dis- 
passionately and as fairly as any other legal topic. I 
shall not attempt to say more than a small part of what 
might be said on this subject, but I shall not intentionally 
omit or conceal anything simply because it may have a 
tendency to discredit some of the conclusions at which 
I have arrived. I am free to concede that to my mind 
there are many difficulties in the way of arriving at a 
satisfactory conclusion as to what was the rightful 
power of the colonies and of the colonial and continental 
congresses respectively, both before and after the 
adoption of the articles of confederation. This diffi- 
culty is, as I think, very much greater than is that of 
determining the character of the general government 
and its relation to the State governments under the Con- 



50 CONSTITUTIONAL HISTORY 

stitution. In my judgment the first of these questions 
is now of little practical moment, except from a purely 
historical standpoint. I do not think that a determina- 
tion one way or the other of the question whether or not 
the Continental Congress was rightfully possessed with 
sovereign power or whether such power was, in fact, 
constantly exercised by it, or whether sovereignty at all 
times resided with and was exercised by the several colo- 
nies, would materially influence the determination of the 
question whether, under the Constitution, the United 
States is a Nation or a Confederacy. Still, the former 
question, as well as the latter, is one on which anyone 
who would write a constitutional history must necessarily 
say something. If I regarded it as having more of a 
direct bearing on the latter question than I do, perhaps 
I should feel like saying more than I shall say in this 
place. 

Nothing is to be gained by discussing sovereignty as 
understood in England or as treated by European 
writers. The American doctrine is, and always has been, 
that sovereignty inheres in the people and is unalienable. 
From the planting of the American colonies this doc- 
trine, though not then stated in the broad terms here 
given, was still to be found in embryo, and since we have 
been an independent nation there has been no serious 
controversy over the question. 

Government is the representative of the sovereign peo- 
ple, and may be clothed with so much sovereign power as 
the people, who possess all, may choose to bestow. Gov- 



OF THE UNITED STATES 51 

emmental agencies may be divided according to the will 
of the supreme force, and changed at its pleasure. There 
is no inherent power in government; all the power it 
possesses is derived from, and has been conferred on it 
by, the sovereign people. 

Sovereignty in the British crown was conceded by all 
the colonies up to the commencement of the revolutionary 
struggle. I suppose that no one will make any claim for 
sovereignty in the colonies or their inhabitants prior to 
the meeting of the Continental Congress in 1774. 

Much ingenuity has been shown in formulating argu- 
ments, and much space has been used in elaborating 
them, to show, on the one side, that from the inception 
of the struggle with England the several colonies were 
separate, sovereign, and independent commonwealths, and 
that no sovereignty resided in or was exercised by the 
Continental Congress ; and, on the other side, to prove 
that there was a Union before there were separate States, 
that there was no sovereignty in the colonies until after 
Congress exercised the sovereign act of declaring their 
independence, that this sovereign power exercised by 
Congress was never surrendered to nor exercised by the 
colonies separately, that whatever sovereignty the colo- 
nies possessed was subordinate to that belonging to Con- 
gress, and was attributable to that rightfully belonging 
to and actually exercised by Congress. 

Plausible, frequently forcible, arguments have been 
presented from time to time for a century and more in 
support of each of these views. Not unfrequently well- 



52 CONSTITUTIONAL HISTORY 

known historical facts have been ignored, apparently 
because they did not coincide with the views which the 
writer desired to maintain. At other times undue stress 
has been laid on certain forms of expression which have 
been inadvertently employed, evidently with no thought 
on the part of the person using them that he was thereby 
furnishing material for an argument to sustain a view 
which he had never entertained. I do not think this 
question was, perhaps, entitled to the consideration it 
has received, and, as I have already said, especially in 
view of the fact that with the adoption of the Constitu- 
tion it ceased to be a living question. I do not think the 
determination of« the question is of much moment, nor 
that it has much practical bearing on the solution of 
questions with which we are still concerned. If I should 
concede all that has been said in support of the position 
that the Continental Congress never possessed any sov- 
ereign authority except such as the several colonies 
directly bestowed upon it, I should still insist that I had 
not surrendered any portion of the argument in favor 
of the claim that the United States is now a sovereign 
nation. Therefore what I shall now say is merely for 
the purpose of presenting the historical question in a 
way that will help to unify our whole constitutional 
history. 

In discussing the question of the relationship existing 
between the general government, as represented in the 
Continental Congress, and the several colonies during 
the time of the revolutionary struggle many facts must 



OF THE UNITED STATES 53 

be taken into consideration if one would hope to arrive 
at anything like a correct conclusion. Many of these 
facts seem to have been frequently overlooked, or else 
were not deemed to have a bearing on the question which 
the writer was discussing. I shall now refer to a few 
of the matters, which, to my mind, seem especially per- 
tinent to the subject under investigation. 

The first Continental Congress met in Carpenter's Hall, 
Philadelphia, September 5, 1774. It should be borne 
in mind that this was purely a revolutionary body. It 
had no legal existence except the inherent right of the 
people to meet, in person or by representatives, and de- 
liberate concerning matters affecting their general wel- 
fare, and to express their wishes to the government. 
Many of the delegates composing this body had not been 
appointed by any body or tribunal known to the law. 
They had been selected by assemblies or temporary or- 
ganizations in the several colonies spontaneously coming 
together, and having no shadow of authority under the 
law. It was the work of the people in their primary 
capacity. Even in those colonies where the delegates 
were selected by the popular branch of the general 
assembly the action had no more validity than did that 
of the promiscuous meetings just referred to; for, as 
a part of the legislature these assemblies could only act 
in conjunction with the governor and council or upper 
house of the general assembly, and upon questions of 
legislative cognizance. The members of the assembly 
thus acting were not elected to send delegates to Con- 



54 CONSTITUTIONAL HISTORY 

gress and had no authority to do so. The highest 
authority that can be attributed to any of the electoral 
bodies which sent delegates to this congress is to recog- 
nize them as the direct voice of the people. And the 
only authority which anyone can claim for the Conti- 
nental Congress is that it was authorized to speak and act 
as the representative of the people. When' any writer 
assumes that delegates to the Continental Congress were 
authorized to represent the colonial governments he is 
assuming something as a fact which has no existence, 
and therefore his reasoning thereon is without force. 

Of course the several bodies which elected the dele- 
gates to this congress acted as citizens of a particular 
colony, and they assumed to represent only their own 
colony. In no instance did the people of different colo- 
nies unite in electing representatives. Nor did any 
deputy in Congress assume to act for, represent, or bind 
any colony except the one from which he was chosen. In 
so far it is true that the colony rather than Congress 
was the unit of the body politic. But it was the people 
and not the colonies that were represented. The question 
at issue is, or was, did Congress represent one people or 
thirteen peoples? The delegates to the second Congress 
which met in May, 1775, were elected in substantially 
the same manner, and, of course, with the same powers, 
as those of the preceding year. 

As it seems to me little light is thrown on this question 
by a reference to the title taken by the government or to 
the terms employed at different times in its history to des- 



OF THE UNITED STATES 55 

ignate it, although much has been written on this point. 
The following are found among the several forms of ex- 
pression used by the Congress in sending out its acts 
and recommendations. "The good people of the several 
colonies (naming them) have severally elected deputies," 
etc.; "We, His Majesty's most loyal subjects, and dele- 
gates of the several colonies," etc. ; "Friends and country- 
men, we, the delegates appointed by the good people of 
the several colonies to meet at Philadelphia," etc. It is 
evident that the delegates recognized themselves as repre- 
senting particular colonies, or the people of such colo- 
nies, and not that either directly represented any colony 
but the one from which he came. 

But the important question is, how did he represent it ? 
With what authority ; in what capacity ; as an inde- 
pendent unit or as an integral part of a united number 
whose combined power alone was authorized to represent 
each and all? The true answer to this question must 
depend not alone on what was said in their credentials, 
or in the style of address which they assumed when they 
became an organized body, although these are to be con- 
sidered, but more, as I think, upon what they did, with 
the consent of those whom they represented, either before 
expressed or afterward fairly implied by their acquies- 
cence in what was done. 

It is said that up to the final ratification of the arti- 
cles of confederation the Continental Congress passed no 
law or ordinance except those relating to its own organ- 
ization ; that all of its doings were confined to declara- 



56 CONSTITUTIONAL HISTORY 

tions, resolutions, and recommendations. And this is 
referred to bj certain authors, as I suppose, to show that 
Congress purposely refrained from exercising the sov- 
ereign power of legislation. But I apprehend it is not 
so much a matter of form as of substance that must 
determine the quality of an act. Whether their enact- 
ments took the form of what is usually designated a 
statute, or were expressed as declarations, is not so 
material as it is to know what was their purpose and 
effect. 

The first Congress, in 1774, entered into an associa- 
tion for non-intercourse with Great Britain until they 
could obtain redress of their grievances. After reciting 
what they hoped to accomplish, they declared: "We do, 
for ourselves and the several colonies whom we represent, 
solemnly agree under the sanctities of virtue, honor, and 
love of our country," to abstain from the acts enumer- 
ated. Of course this is not a law, and for its violation 
no penalties are imposed. But were the delegates acting 
for one colony or for all; for local governments or for 
the whole people? When the news of this act reached 
England would she feel that she had Massachusetts alone 
to deal with or the people of twelve colonies (Georgia 
was not represented in the first Congress ) ? 

Take the great Declaration of Rights of October 14, 
1774. In this, as in its other papers. Congress speaks 
with no uncertain tone. The document voices the rights 
of all the people and not those of any one colony. The 
body which puts this forth is evidently representing the 



OF THE UNITED STATES 57 

people and not political organizations. What Congress 
said sounds like the voice of sovereignty. Still, it is 
probably correct to say that most of that which they did 
was not, strictly speaking, legislation. 

Without going into details let us look for a moment 
at some of the things which Congress did before the 
articles of confederation were finally ratified. They an- 
nounced the reasons for taking up arms, they appointed 
a commander-in-chief, and general officers subordinate 
to him, they provided for raising, arming, and support- 
ing an army, they declared the independence of the 
colonies, and such other acts as sovereign governments 
do in time of war. 

I submit that these are acts which have a strong ten- 
dency to sustain the contention that the Continental Con- 
gress was exercising sovereign power before any such 
power was delegated to it by the States through the 
articles of confederation. Many of these acts were done 
prior to 1776, when no one was making any claim that 
either colony was a sovereign State. When President 
Lincoln said in his first message to Congress, which met 
in special session on July 4, 1861, "The Union is older 
than any of the States," was he not justified in his state- 
ment by the existing facts? If declaring and maintain- 
ing the independence of a people are not sovereign acts 
I should hardly know what to nanve that are. 

But it has been stated that some of the colonies, not- 
ably Virginia, had declared their independence prior to 
the time when Congress took final action on that subject 



58 CONSTITUTIONAL HISTORY 

on July 4, 1776. It is true that in May and June, 
1776, Virginia had taken action establishing a State 
government, with a written Constitution, independent of 
Great Britain. Some of the other colonies, if not going 
so far, had taken action in that direction. But looking 
at the substantial thing, the accomplished fact, can there 
be any question as to the source of our independence.? 
Is the sovereign act of Congress in declaring indepen- 
dence, and are the steps she took securing it, at all af- 
fected by the action taken by Virginia and other separate 
colonies ? 

In 1775 Massachusetts, New Hampshire, and South 
Carolina applied to Congress for advice, which some 
would claim practically amounted, under the circum- 
stances, to a request for authority to organize State 
governments independent of those existing under royal 
authority, or which had existed before they were over- 
thrown by the revolutionary forces. On the advice and 
recommendation of Congress such governments were 
•established. Similar action was taken in some of the 
colonies without consulting Congress. I think I am safe 
in saying that at that time all of the colonies supposed 
they were acting either under authority of Congress or 
at least in entire harmony with her wishes. At home 
and abroad it was Congress, and not any individual 
colony, that was looked to as the author of those acts 
which finally resulted in independence. 

I have now referred to a sufficient number of acts to 
indicate pretty clearly the sovereign nature of the 



OF THE UNITED STATES 59 

transactions performed by Congress before any sovereign 
authority was directly conferred upon it by the 
colonies. 

As to the effect of the Declaration of Independence 
upon the several colonies perhaps there will always be 
a difference of opinion. If we look at the language 
used it cannot be said to be opposed to the theory that 
it was the colonies as united in Congress which were de- 
clared independent. "We, therefore, the representatives 
of the United States of America, in general congress 
assembled, . . . do, in the name and by authority 
of the good people of these colonies, solemnly publish 
and declare that these united colonies are, and of right 
ought to be, free and independent states; 
that, as free and independent states, they have 
full power to levy war, conclude peace, contract 
alliances, establish commerce, and do all other acts 
and things which independent states may of right do." 
It may be noted that it was not the representatives of 
the several colonies, but the "representatives of the 
United States of America" who acted ; that they act in 
the name, not of the colonies, but of "the good people 
of these colonies" ; it is not the several colonies, but the 
"united colonies" which are declared independent states ; 
and it is only as such that they are declared to have 
power to levy war, and do the other things which only 
independent states have a right to do. The language 
of the declaration and the acts of Congress seem to 
harmonize and to sustain the view that sovereignty and 



60 CONSTITUTIONAL HISTORY 

independence reside in the "united colonies" which now 
became the United States. 

This theory is by no means new. When the report of 
the committee of the whole, recommending the establish- 
ment of a national government, was before the Constitu- 
tional Convention for discussion and adoption, Mr. Mar- 
tin, of Maryland, a leader of the federal as opposed to 
national party, said that by separating from Great 
Britain, the thirteen colonies were placed in a state of 
nature toward each other. But Mr. Wilson, of Penn- 
sylvania, and Mr. Hamilton, of New York, contended 
that it was the united colonies which became independent 
of Great Britain, that they were independent not in- 
dividually but unitedly, and it was thus that they be- 
came confederated. And this view has prevailed quite 
generally. 

Having called attention to some of the things which 
go toward sustaining the theory of sovereign indepen- 
dent power residing in Congress from the first, and be- 
fore it was possessed by the separate colonies, it is but 
fair to suggest there were certain acts of sovereignty 
which Congress did not assume to exercise directly, but 
only acted thereon through the colonies or States. One 
of these was the important power of taxation. Whether 
or not Congress might have exercised this power, as well 
as other sovereign acts which she did perform, had she 
chosen to do so, need not now be inquired into. It is 
sufficient that she did not attempt to do so. On many 
questions Congress made recommendations to and re- 



OF THE UNITED STATES 61 

quests of the several colonies for their action. Fre- 
quently these recommendations and requests accomplished 
little in the way of results. Still, there was the recogni- 
tion that the colonies had the power to act, and there 
was no claim of right put forth by Congress to do more 
than to recommend or request. 

Taking into consideration all these facts, including 
both of these lines of action, perhaps it is no more than 
one might reasonably expect, when we discover them 
leading to the adoption of two diverging lines of 
thought, and the formation of two schools of interpreta- 
tion. But, as I have already said, so far as it affects 
our present government, I regard the question as im- 
material and do not think it profitable to occupy more 
space in its discussion. 



62 CONSTITUTIONAL HISTORY 



III 

PERIOD OF THE CONFEDERATION 

It was generally felt that there should be a clear 
understanding between Congress and the several colonies, 
and also that Congress, which represented the united 
needs of the colonists, should have facilities for accom- 
plishing such measures as it might deem for the common 
good. That such facilities had not been furnished, or, 
at any rate, were not in active operation, was generally 
conceded. It was hoped by many that this could be 
done through the measure brought forward, and pro- 
posing the formation of a confederation. As early as 
July 21, 1775, Dr. Franklin presented to Congress 
a draft of Articles of Confederation and Perpetual 
Union of the Colonies. While this was not acted on it 
formed the basis of the report of the committee ap- 
pointed to prepare a plan of union, and which was sub- 
mitted to Congress by its chairman, Mr. Dickinson, July 
12, 1776, and was adopted by Congress November 15, 
1777. These articles were immediately thereafter trans- 
mitted to the several States for approval, and were 
finally ratified by Maryland, the last of the thirteen 
colonies to act, on March 1, 1781. 



OF THE UNITED STATES 63 

It was believed that these articles, if not conferring 
on Congress any new power, would at least furnish it 
with more efficient measures for carrying out its plans 
than it had before that been possessed of. 

I think it may well be doubted whether the authority 
residing in Congress and actually exercised by it, with 
the tacit consent if not the express approval of the people 
of the several colonies, from its first meeting, in 1774, till 
the ratification of the articles of confederation on March 
1, 1781, was not even more extensive than was that 
which was now, by these articles, explicitly conferred. 
Probably it is not too much to say that the articles of 
confederation, when put into actual operation, proved 
much less satisfactory than their friends had hoped 
they would be. Their inefficiency, as an instrument of 
government, was apparent almost as soon as they went 
into operation. As we look at them now and read them 
in the light of history we can hardly be surprised at the 
result. We should be profoundly thankful that an 
all-wise Providence was so forbearing in His dealings 
with their authors as to permit so much good to be ac- 
complished as our country actually achieved under such 
defective apparatus. The only good purpose which this 
instrument seems appropriately designed to subserve is 
for an object lesson to teach statesmen what not to do. 
Had there been nothing but these articles to hold the 
people together we can hardly believe that independence 
could have been achieved or that the States would have 
remained united after peace had been concluded. 



64 CONSTITUTIONAL HISTORY 

I do not consider these articles as forming the ground- 
work of, nor as having any especial bearing on, the Con- 
stitution which supplanted them. All I shall say of them 
is simply from an historical standpoint and not as of an 
existing, though modified, instrument, replete with life. 

The second of the articles of confederation reads, 
*'Each State retains its sovereignty, freedom, and in- 
dependence, and every power, jurisdiction, and right 
which is not by this confederation expressly delegated 
to the United States in Congress assembled." The 
structure of this sentence clearly indicates that a dis- 
tinction is intended to be made between the two terms, 
"sovereignty, freedom, and independence," and "every 
power, jurisdiction, and right;" and that it is the latter 
alone that is modified by the remaining parts of the sen- 
tence. In other words the statement means that a part 
of the "power, jurisdiction, and right" has been dele- 
gated to Congress, but as to "sovereignty, freedom, and 
independence" the whole of it remains with the colonies. 
Still, the powers expressly delegated to Congress in 
other parts of the articles, or those which are clearly 
implied as belonging to Congress, are such as are uni- 
versally recognized as sovereign powers. Whether those 
who drew and those who adopted these articles supposed 
that Congress possessed certain sovereign powers, or that 
sovereignty itself belonged to and remained with the 
States, while a part of the sovereign power was conferred 
on Congress, we may not be able to definitely determine. 
But it is hardly conceivable that they did not regard the 



OF THE UNITED STATES 65 

power to levy war, to conclude treaties, and other au- 
thority given to Congress, as sovereign powers. 

Whatever view we may take of the question as to 
whether or not Congress was intrusted with sovereign 
powers under the articles of confederation, it certainly 
does not follow, as some have claimed, from the language 
used in said second article, that Congress had never pos- 
sessed such powers. Before the adoption of these articles 
the power possessed by Congress was nowhere to be found 
in writing — certainly it was not contained in any one 
writing. The credentials of the delegates had professed 
to state some of their authority. Subsequent action of 
various colonies, through this legislative or other repre- 
sentative bodies, had conferred on or recognized in them 
other power and authority. And it is altogether prob- 
able that still other powers were exercised by Congress 
which the people of the whole country approved, but 
of which there existed no written evidence. Wherever 
sovereignty was lodged after the declaration of inde- 
pendence, it can hardly be claimed by anyone that be- 
fore that event it resided in the colonies. Congress ex- 
ercised sovereign power during that time. When did 
such power pass from Congress, and to whom did it 
pass ? What necessity was there for the people, through 
the articles of confederation, to profess to confer that 
power on Congress if it was already possessed of it-f* 

These matters have been presented for reflection and 
by way of suggesting some of the difficulties which one 
encounters who attempts to solve the problems of gov- 



6Q CONSTITUTIONAL HISTORY 

ernment. Not unfrequently language used conveys to 
two persons entirely different meanings. A third person 
proposes to substitute other words for those which the 
first two have used; one of them makes no objection, for 
he sees no material change in the meaning which would 
be produced by the substitution, while to the other per- 
son an entirely different document would thereby be 
created. All of these matters must be remembered and 
considered when we are criticising and construing these 
old documents. From the same instrument people then, 
as now, constructed governments possessed, as they sup-, 
posed, of very different powers. 

While certainly not free from doubt, and not pre- 
tending that the theory which I adopt solves all the diffi- 
culties that present themselves, it seems to me that the 
articles of confederation, whether intended or not, neces- 
sarily had the effect of withdrawing from Congress some 
of the power which it had theretofore possessed, instead 
of conferring new powers upon it. For the following 
reasons, viz., because at the opening of the revolutionary 
struggle, and before the Declaration of Independence, 
the colonies did not, and under the circumstances could 
not, possess sovereign power, and therefore could not 
have conferred it on Congress had they attempted to 
do so ; and because the delegates to Congress were sent 
by the people and not by the colonies, and in their acts 
they professed to and did represent all the people of the 
thirteen colonies and not the people of the separate 
colonies; and because the language used and the acts 



OF THE UNITED STATES 67 

performed by Congress are, as I think, susceptible of no 
other reasonable construction, and because there is noth- 
ing seriously in the way of adopting such view, I am of 
the opinion that the Declaration of Independence created 
the United States a sovereign nation, that sovereignty 
resided in the whole people and was expressed through 
Congress as their general representative. But beyond 
this the difficulties thicken. 

I see no act done by the people themselves whereby 
this sovereignty was taken from the people as a whole 
and, being divided, was transferred to the people of the 
States severally. And yet, judging by the course of 
subsequent events, and the views expressed by those who 
participated in public affairs at the time, and who 
seem best competent to decide, I am forced to the con- 
clusion that after the ratification of the articles of con- 
federation, and especially after the conclusion of peace, 
the several States were looked upon as entirely separate, 
each having the attributes of independence and sover- 
eignty ; and that Congress was supposed to possess only 
that sovereign power which was conferred upon it, or 
which was recognized as belonging to it, in and by the 
articles of confederation. I do not see how this change 
was legitimately made by the articles of confederation 
themselves, for the reason that they are the work of the 
States and not of the people. It is true that they were 
first adopted by Congress, which represented the people 
and not the States, but they were submitted to the States 
and not to the people for their ratification. The people 



68 CONSTITUTIONAL HISTORY 

possessed supreme power, and the States only such power 
as the people had conferred upon them. Consequently, 
I cannot see how these beings, the State governments, 
could take sovereignty from the people as a whole and 
transfer it to themselves, or to the people of the States 
separately. But as I read the history of these times 
this is what the people recognized as having been done. 

I do not think it strange that among our ablest writers 
on constitutional law the view should have been enter- 
tained that, after as well as before the ratification of the 
articles of confederation, sovereignty resided in the peo- 
ple of the United States and not in the people of the 
separate States ; that during all that time, sovereign 
power belonged to Congress as a matter of right, and 
that Congress was the representative of a sovereign 
nation. But I am forced to the adoption of a different 
view, and for the reason, in addition to what I have 
already said, that the articles of confederation seem to 
me to be susceptible of no other interpretation ; and, by 
whatever authority adopted, they were accepted by the 
people as containing the expression of the powers of the 
general government. 

Unless we look to something else as the source of au- 
thority then, that the general government, existing 
under and by virtue of the articles of confederation, was 
a confederacy and not a nation is beyond question. It 
is so designated in the bond. The government is called 
a confederacy, or a confederation, and not a nation. The 
several States could not retain "sovereignty, freedom, 



OF THE UNITED STATES 69 

and independence" if they did not possess it. I know 
that some writers assert that this expression would not 
have been used unless the States had, from the first, pos- 
sessed these powers; but I do not concede this, nor do I 
think it by any means proves that the United States had 
at no time possessed sovereignty. But I do think that 
the articles of confederation clearly imply that the 
States are independent and sovereign commonwealths, 
and that the Government of the United States, as repre- 
sented by Congress, had only derivative powers. 

It is true, as I have already observed, that even under 
the articles of confederation Congress was intrusted with 
the exercise of some sovereign powers, but it was without 
authority to perform so many sovereign acts which are 
essential to nationality that no serious claim can be made 
that under the articles of confederation the general 
government was anything more than the most loosely 
bound confederation. 



70 CONSTITUTIONAL HISTORY 



IV 



PERIOD OF PREPARING AND ADOPTING THE 
CONSTITUTION 

MATTERS LEADING TO THE CALL OF THE CONVENTION 

Under the government of Congress, both before and 
after the ratification of the articles of confederation, the 
want of power in that body was so manifest, and the 
necessity for a strong government was so pressing, that 
expressions of anxiety and moves looking to the adoption 
of some remedy came from time to time from all parts 
of the country. 

In August, 1780, delegates from the New England 
States met in Boston to consider the general welfare. 
As a result of this conference the delegates adopted a 
declaration favoring a more substantial union than was 
contemplated by the articles of confederation which, at 
that time, had not been finally ratified. On an invitation 
sent out by this body another convention, composed of 
delegates from New York in addition to those from the 
States which had been represented in the former as- 
sembly, convened in Hartford on November 11, 1780. 
A new plan of government was proposed by this meeting 
and was sent to Congress and to each of the States, but 



OF THE UNITED STATES 71 

no action was taken thereon by the bodies to whom it was 
sent. Propositions were made by individuals, by State 
legislatures, and by Congress itself for amending the 
articles of confederation. On several occasions Congress 
asked the States for additional authority, especially over 
commerce and the revenue. The writings and corre- 
spondence of the leading statesmen of those times, in- 
cluding Washington, Adams, Jefferson, and Madison, 
show that they were intensely interested in having the 
defective government of the confederation remedied by 
the adoption of something more substantial and efficient. 
In March, 1785, commissioners from Virginia and 
Maryland met at Mount Vernon to agree on a plan for 
regulating the commerce of Chesapeake Bay and the 
Potomac River, so far as it was common to the two 
States. The report of this commission to the legisla- 
tures of those two States, and the discussion arising 
thereon in the two bodies, led to the adoption of a reso- 
lution by the legislature of Virginia inviting all the 
other States to join her in appointing commissioners to 
meet at a time and place to be agreed on, "to consider 
how far a uniform system of their commercial intercourse 
and regulations might be necessary to their common in- 
terest and permanent harmony," and to report the result 
of their deliberations to the several legislatures and to 
Congress. Most of the States accepted this invitation 
and appointed commissioners, but only those from five 
States attended, viz., from Virginia, New York, New 
Jersey, Pennsylvania, and Delaware. These commis- 



72 CONSTITUTIONAL HISTORY 

sioners met at Annapolis September 11, 1786. When 
their credentials were presented it was found that New 
Jersey, in appointing her commissioners, had enlarged 
on the plan proposed in the Virginia resolution, and had 
empowered them "to consider how far a uniform system 
of their commercial regulations, and other important 
matters, might be necessary to the common interest and 
permanent harmony of the several States," and to report 
such an act on the subject as when ratified "would enable 
the United States in Congress assembled effectually to 
provide for the exigencies of the Union." 

On account of such a limited number of States being 
represented, and believing that the New Jersey plan was 
far preferable to the Virginia proposition, which all of 
the States except New Jersey had followed in appointing 
their commissioners, the convention decided to do nothing 
farther than to recommend the calling of another con- 
vention with enlarged powers. An address was there- 
fore prepared and sent to the State legislatures, and 
also to Congress, inviting the several States to appoint 
commissioners "to meet at Philadelphia on the second 
Monday in May next, to take into consideration the 
situation of the United States, to devise such further 
provisions as shall appear to them necessary to render 
the Constitution of the Federal Government adequate to 
the exigencies of the Union." 



OF THE UNITED STATES 73 



HOW THE CONVENTION WAS CALLED 

A great deal has been written concerning the power 
of the Constitutional Convention of 1787, and much was 
said in the convention itself by a number of delegates as 
to the authority that was conferred upon them by their 
respective States. It was then claimed, and it has been 
asserted over and over again since by writers in sym- 
pathy with the views of the delegates who made such 
claims, that the only power which the delegates had was 
to revise and amend the articles of confederation, and 
that the convention was assembled on the call of Con- 
gress for that express purpose. Personally I do not 
think that this question has any particular merits, and I 
consider it as of no consequence either the one way or 
the other, as I shall hereafter more fully explain. But 
because so much has been made of it perhaps it is just 
as well to briefly state the facts. 

A late writer of some eminence who holds to the theory 
that our Government is only a confederacy, as well as 
other writers of more or less note, holds that the conven- 
tion was assembled on the call of Congress and therefore 
could do no more than revise and amend the articles of 
confederation. Let us see how far such an assumption 
is justified. It is true that Congress did, on February 
21, 1787, having under consideration the report made 
to it by the Annapolis convention, pass the following: 

"Resolved, That in the opinion of Congress, it is ex- 



74 CONSTITUTIONAL HISTORY 

pedient that, on the second Monday In May next, a con- 
vention of delegates, who shall have been appointed by 
the several States, be held at Philadelphia, for the sole 
and express purpose of revising the articles of confedera- 
tion, and reporting to Congress and the several legis- 
latures such alterations and provisions therein as shall, 
when agreed to in Congress, and confirmed by the States, 
render the Federal Constitution adequate to the exigen- 
cies of government and the preservation of the Union." 

Of course it was entirely competent for Congress to 
pass such a resolution, for the thirteenth of the articles 
authorizes their amendment by the consent of Congress 
and all the States. And it is not strange that some per- 
sons who have not carefully looked into the matter 
should assume that this resolution of Congress was the 
basis for the meeting of the Constitutional Convention. 
But how an author who shows that he knows of the other 
actions to which I refer can make such an assumption 
and still profess to be fair, is more difficult to understand. 
It seems as though he realizes that his argument in favor 
of a confederacy will Jiave nothing on which to rest, un- 
less he is able to make out that our Constitution is only 
a revision of the articles of confederation, and that, to 
sustain this point, it is essential to show that the holding 
of the convention originated with Congress. 

I have already quoted from the report of the Annapo- 
lis convention in September, 1786, calling the Phila- 
delphia convention, and in that call not one word was 
said about amending or revising the articles of con- 



OF THE UNITED STATES 75 

federation, nor were those articles referred to in any 
way. The report pointed out the defects in the Federal 
Government, and gave that as a reason why a conven- 
tion to remedy the evil should be called. But whether 
the convention shall proceed to provide a remedy 
through the institution of a new government or by 
amending and revising the basis of the old one, the call 
docs not say. It may also be said that the call sent out 
by the Annapolis convention was without any express 
authority. In fact it was so expressly stated in the 
report of the convention. But that convention said that 
in their view the exigencies of the occasion justified their 
exceeding their powers and proposing the action which 
they did. 

We are now fairly brought to the question: By what 
authority was the Philadelphia convention convened? 
Two calls were issued, the first in September, 1786, by 
the Annapolis convention, the second on February 21, 
1787, by Congress. Under the first call the States were 
asked to send delegates "To take into consideration the 
situation of the United States, to devise such further 
provisions as shall appear to be necessary to render the 
Constitution of the Federal Government adequate to 
the exigencies of the Union." Under the second call the 
convention was asked to meet "for the sole and express 
purpose of revising the articles of confederation." 

Before any action whatever was taken in Congress 
six States, viz., New Jersey, Pennsylvania, Delaware, 
Virginia, North Carolina, and Georgia had appointed 



76 CONSTITUTIONAL HISTORY 

their delegates to the Philadelphia convention on the 
call of the Annapolis convention, with authority ex- 
pressed in their credentials in conformity with the said 
call. The other six States, viz.. New Hampshire, Massa- 
chusetts, Connecticut, New York, Maryland, and South 
Carolina, did not appoint their commissioners until after 
the passage of said resolution by Congress. In the 
action taken by some of these States it does not appear 
on which call they are acting. The credentials of the 
delegates from New Hampshire, Maryland, and South 
Carolina seem to have been drawn on the basis of the 
Annapolis call and are broad enough to authorize them 
to act in accordance with the instructions received by the 
delegates of the six States first named. Massachusetts, 
Connecticut, and New York are the only States which 
instructed their delegates to revise the articles of con- 
federation. Rhode Island took no action whatever and 
was at no time represented in the convention. 

These facts seem to justify but one conclusion and 
that is that the Philadelphia convention, or at least the 
controlling part of it, was based on the call of the An- 
napolis convention. Of course under either call the con- 
vention might have revised the articles of confederation, 
but only on the call of the Annapolis convention, without 
ignoring the call itself and any authority it might pre- 
sume to confer, could it proceed to form a new govern- 
ment. As a convention, under their instructions, the 
delegates met "to render the Constitution of the Federal 
Government adequate to the exigencies of the Union." 



OF THE UNITED STATES 77 

Of course to engage in the establishment of a new 
government some of the delegates would have to dis- 
regard their instructions, but the delegates from a ma- 
jority of the States were under no such limitation. 

AUTHORITY OF THE CONVENTION 

Having now shown, as I think, that the Philadelphia 
convention, under the call and the authority conferred 
on its delegates, was not limited in providing a remedy 
against the calamity threatening the country, to a re- 
vision of the articles of confederation, or to a preserva- 
tion of the old confederacy, I want to reiterate a state- 
ment I made above that, to my mind, this whole matter 
is of no moment. I have dwelt upon it at this length 
for the purpose, principally, of showing on what a 
slender thread some persons will hang an argument. I 
presume that not a single State legislature which 
elected delegates, and not one of the delegates elected, 
had, at the time of their election, any conception 
of the magnitude of the work which the convention 
would perform, or of the scope it would cover and the 
effect it would produce. Perhaps the result of the con- 
vention's work, while within the general scope, actually 
exceeded the specific instructions given to most of the 
delegates. Some of these instructions at least required 
the action of the convention to be reported to Congress 
and to the State legislatures for their approval. This 
the convention did not do. If the validity of the Con- 



78 CONSTITUTIONAL HISTORY 

stitution, as the basis of a national independent govern- 
ment, depended upon the action of the convention I 
should be compelled to concede that it was without au- 
thority. Neither the body which issued the call, nor the 
State legislatures which elected the delegates, either 
singly or combined, had any authority to establish an 
independent government, and none of them attempted 
to do so, or to authorize it. While I deny, as a fact, that 
the convention exceeded the general scope of its au- 
thority, I am willing to concede it for the sake of the 
argument. 

The Constitutional Convention did nothing authorita- 
tively. It is hardly worth while to discuss what its 
powers were or were supposed to be. Whether it did 
what it was called for, or what it assembled to do, is 
wholly immaterial. It needed no power or authority 
from anybody to do what it did; all that it required 
was ability and a disposition to save the country. The 
authority of the Constitution does not depend, in the 
slightest degree, on its adoption by the convention, but 
alone on its ratification by the people; not on the au- 
thority which had been delegated to the convention, but 
on the power which inheres in the people. So far as 
authority was concerned, George Washington alone, 
who was its president, or Dr. Franklin, or Mr. Madison, 
each of whom was largely instrumental in the prepara- 
tion of the Constitution, might have done all that the 
convention did. The fact that the members of the con- 
vention were elected by the various State legislatures 



OF THE UNITED STATES 79 

added nothing to what they might have done had the 
same men assembled without such election, and with no 
credentials but their own interest in the public good as 
shown by their voluntary presence, farther than that 
by such election it was made more probable that what- 
they did would receive consideration, and would be more 
likely to meet the approval of the people when it was 
submitted to them for their action. This is evident not 
only from the inevitable conclusion to be drawn from 
the facts respecting the document itself, but also from 
the fact that Rhode Island never was represented in the 
convention at all. If the validity of the Constitution 
depended on the action of the convention, and of the 
authority of the delegates, and the delegates following 
their instructions, then it was necessary that each State 
to be bound by it be represented by delegates. But 
Rhode Island, which had no delegates in the convention, 
was as much bound by the Constitution, after her rati- 
fication thereof, as was either of the other States which 
was represented by delegates, and her rights thereunder 
were also as great as were those of the other States. 
This conclusively shows that it was not what was done 
in the convention, but what the people did thereafter, 
that gave efficiency to the Constitution. 

What came to the convention by reason of its dele- 
gates having been elected, which it would not have pos- 
sessed had they voluntarily appeared and transacted the 
same business without an election, was rather in the 
nature of a moral power and influence with the people 



80 CONSTITUTIONAL HISTORY 

than a legal authority. It was the action of the people 
alone, after the work of the convention was all done, 
that gave vitality and life to the document which the 
convention had prepared and sent out. The convention 
was the attorney who prepared such an instrument as he 
thought would meet his client's wishes and would pro- 
tect and advance his interests ; the people were the client 
for whom it acted, and who alone, by approving and 
executing it, could breathe into it vitality and legal life. 
Whether the attorney were before chosen and commis- 
sioned to do the work, or whether, being conversant with 
his client's affairs, he conceived that such a document 
was one which his business interests required to have 
drawn, and therefore proceeded to prepare it, is en- 
tirely immaterial. The important fact, and the only 
one of any moment, is that the attorney did do the work, 
that he presented it to his client, that it met the client's 
approval, and that it was by him executed and made a 
legal document. 

WHAT THE CONVENTION THOUGHT IT WAS DOING 

In view of the fact that writers still so persistently 
attribute a federal character to our Government, and as 
one of the reasons in support of such action assert that 
such was the understanding of the convention which 
framed the Constitution, it is, perhaps, best to devote 
some attention to that claim. As I have already re- 
marked on the subject of the authority under which the 



OF THE UNITED STATES 81 

convention assembled and performed its work, so I may 
repeat with reference to what the delegates thought they 
were doing, it is wholly immaterial. Nevertheless, other 
writers have not so considered or treated it, and, to 
guard against misconception on that matter, I shall at- 
tempt to show what the fact is. 

I realize that quoting from two or three delegates, 
however influential they may have been, may not, by 
any means, show the general spirit of the convention. 
Only a few delegates took any prominent part in the 
discussion of questions before the convention. The views 
of the main body of the delegates found expression only 
in the action taken. To have anything like an adequate 
view of the opinions entertained by the convention, ex- 
cept as they are gathered from the final results of its 
work, one must go through the various measures pre- 
sented, the discussions had thereon, and the votes taken ; 
even then he is liable to be mistaken. The reasons for 
men's actions do not always appear. Frequently dele- 
gates vote for propositions which they do not favor, and 
often the friends of a measure allow its opponents to 
modify it when, if they chose, they might prevent it, be- 
cause they believe the proposed modification does not have 
the effect its movers attribute to it, and by allowing the 
amendment to pass they may gain its opponents to their 
side in the final action on the main measure. Several 
instances of this character actually took place in this 
convention. 

Notwithstanding what I have just said I think that 



82 CONSTITUTIONAL HISTORY 

in a moderately short space I can show satisfactorily 
what the delegates in general and the convention as a 
whole thought on the subject of whether or not they 
were establishing a new government or perpetuating the 
old confederacy. 

Up to the time of the meeting of the convention Mr. 
Madison was a member of Congress and as such was 
fully occupied with the business of that body. Never- 
theless, being deeply interested in the proposed conven- 
tion, he carried on quite a correspondence with leading 
patriots with reference to the course to be pursued. On 
April 8, 1787, he wrote to Governor Randolph, of Vir- 
ginia, as follows: "I think, with you, that it will be 
well to retain as much as possible of the old confedera- 
tion, though I doubt whether it may not be best to work 
the valuable articles into the new system instead of en- 
grafting the latter on the former. ... I hold it 
for a fundamental point that individual independence 
of the States is utterly irreconcilable with the idea of an 
aggregate sovereignty. I think, at the same time, that 
a consolidation of the States into one simple republic is 
not less unattainable than it would be inexpedient. Let 
it be tried then, whether any middle ground can be taken 
which will at once support a due supremacy of the na- 
tional authority and leave in force the local authorities, 
so far as they can be subordinately useful. . . . Let 
the National Government be armed with a positive and 
complete authority in all cases where uniform measures 
are necessary, as in trade, etc. Let it also retain the 



OF THE UNITED STATES 83 

power which it now possesses. . . . Let this na- 
tional supremacy be extended also to the judiciary de- 
partment. To give the new system its proper energy 
it will be desirable to have it ratified by the authority 
of the people, and not merely by that of the legisla- 
tures." 

As Mr. Madison felt that he had not the time himself 
to do so he requested Governor Randolph to prepare a 
plan of government to submit to the convention when it 
assembled, and these views which he entertained were 
communicated to Governor Randolph for his aid in di- 
gesting such a plan. When we come to that feature it 
will be seen that most of Mr. Madison's views, as com- 
municated to Governor Randolph, entered into the plan 
which the latter presented to the convention. 

The convention met according to its call on May 14, 
1787, but it was not till the 25th of that month that a 
majority of the States were represented. Rhode Island 
was never represented. The other twelve States sent 
delegates, but at no time were they all represented at 
once. The sittings of the convention extended from May 
25th to September 17th, with but short intermissions 
by adjournment. After delegates from a majority of 
the States appeared, two or three days were occupied in 
organizing, adopting rules, and getting ready for work. 

On May 29th, as the first work of the convention, 
Mr. Edmund Randolph, of Virginia, introduced a series 
of resolutions forming an outline plan for the formation 
of a National Government. This plan provided for the 



84 CONSTITUTIONAI. HISTORY 

establishment of a "national legislature" consisting of 
two Houses with authority to legislate on all matters 
affecting the general interests, and the right to negative 
all laws of any State which, in the opinion of the na- 
tional legislature, contravened the articles of union; a 
"national executive" with general authority to execute 
the national laws; a "national judiciary" with jurisdic- 
tion over questions of national concern. This plan also 
provided that the Constitution, when framed, should be 
submitted to conventions of the people for ratification. 

Mr. Charles Pinckney, of South Carolina, introduced 
a much more formal draft of a constitution than was 
contained in Mr. Randolph's plan, the first article of 
which was as follows: "The style of this Government 
shall be the United States of America, and the Govern- 
ment shall consist of supreme legislative, executive, and 
judicial powers." The final draft of the Constitution, 
as passed by the convention, followed quite closely the 
form and language of this draft presented by Mr. 
Pinckney. 

Both of these plans were then referred to the commit- 
tee of the whole house, into which the convention was 
then resolved, for discussion. The convention sat in 
committee of the whole from May 30th to June 13th 
and considered minutely the needs of the country and 
the probability of their being met by the provisions of 
the documents submitted. Mr. Randolph's plan was 
taken as the basis for discussion. On June 13th, after 
the discussion of the Randolph plan was completed and 



OF THE UNITED STATES 85 

it was ready for favorable report to the convention, at 
the request of those who opposed this plan, action 
thereon was deferred and time given the delegates who 
were anxious to amend the articles of confederation to 
mature and present their plan. On June 15th Mr. Pat- 
terson, of New Jersey, reported a plan for a Federal 
Government, the first article of which was as follows: 
'^Resolved, That the articles of confederation ought to 
be so revised, corrected, and enlarged as to render the 
Federal Constitution adequate to the exigencies of 
Government and the preservation of the Union." On 
the question of postponing action on the Randolph plan 
in order to consider the Patterson plan, Mr. Lansing, of 
New York, who favored the latter, said : "The two sys- 
tems are fairly contrasted. The one now offered (by 
Mr. Patterson) is on the basis of amending the Federal 
Government, and the other to be reported as a National 
Government" on propositions which exclude the pro- 
priety of amendment. And on the next day, while the 
two plans were under discussion, Mr. Lansing again said : 
"This system is fairly contrasted with the one ready to 
be reported — the one federal, the other national. In the 
first the powers are exercised as flowing from the re- 
spective State governments, the second deriving its 
authority from the people of the respective States." 

The merits of the two plans, Mr. Randolph's for 
establishing a National Government, and Mr. Patter- 
son's for continuing the confederacy and amending and 
enlarging the articles of confederation, were discussed in 



86 CONSTITUTIONAL HISTORY 

committee of the whole until June 19th. The want of 
power on the part of the delegates to take the action 
contemplated by the Randolph plan was fully stated 
and earnestly contended for. The danger from a 
National Government and the merits of a federation 
were presented at great length. But after the fullest 
consideration had been given to these claims, and all the 
arguments opposed to the first and in favor of the second 
plan had been heard, the committee, by a vote of seven 
States against three, rejected the Patterson plan and 
adhered to its former action in favor of the Randolph 
plan, which was now reported to the convention with a 
recommendation that it be taken as the basis for the 
Constitution. The first article of the Randolph plan 
which was thus favorably reported to the convention 
by the committee of the whole read as follows: "Re- 
solved, That it is the opinion of this committee that a 
National Government ought to be established, consisting 
of a supreme legislative, executive, and judiciary." 

The report of the committee of the whole being now 
up for consideration in the convention, after some dis- 
cussion over terms, such as States, sovereignty^, national, 
federal, Mr. Ellsworth, of Connecticut, moved to amend 
the first resolution, as above quoted, so that it should 
read, "That the Government of the United States ought 
to consist of a supreme legislative, executive, and judi- 
ciary." Among the reasons he gave for desiring the 
change was that " He wished, also, the plan of the con- 
vention to go forth as an amendment of the articles of 



OF THE UNITED STATES 87 

confederation, since, under this idea, the authority of 
the legislature could ratify it." Mr. Randolph, the 
author of the plan, consented to the amendment, but said 
he "apprised the gentleman who wished for it that he 
did not admit of it for the reasons assigned." And so 
the amendment was made by unanimous consent without 
any division being called for. As a consequence the 
word national was stricken from the report wherever it 
occurred. 

This change in the phraseology of the report is the 
basis for the whole argument put forth by those who 
assert that the convention supposed it was simply amend- 
ing the articles of confederation. That any such de- 
duction can fairly be drawn from what was there done 
and said cannot be sanctioned for a moment. That the 
Federal party in the convention hoped to secure such 
amendments to the proposed plan as would, in a measure, 
carry out their ideas, is quite possible, and perhaps they 
thought this amendment tended to aid them. But that 
the convention had any such idea is inconceivable. The 
day before, on a direct issue between the two plans, the 
National party had carried the convention by more than 
a two-thirds majority of the States voting. Nothing 
had occurred in the meantime to change anyone's 
opinion. No reason existed on the 20th for surrender- 
ing the national plan and adopting the federal that did 
not exist on the 19th. No one can, for a moment, be- 
lieve that by voting with the Federalists to strike out 
the word national from the draft, the Nationalists sup- 



88 CONSTITUTIONAL HISTORY 

posed they were in any way modifying their plan. In- 
deed, Randolph, the leader of the Nationalists, said his 
agreement to the amendment was for no such purpose, 
and, in all probability, the other members of his party 
had the same view. Nor is the change in the language 
susceptible of any such construction as is attempted to 
be placed upon it. It is true that the resolution re- 
ported from the committee to the convention declared 
that a National Government ought to be established. 
By the amendment unanimously adopted the word na- 
tional was stricken out. But it now declared that the 
Government ought to consist of a supreme legislative, 
executive, and judiciary. Such a government could, in 
the nature of things, be no less than a national one. 
And thus it was evidently understood by the convention. 
That the convention which adopted the amendment con- 
sidered the words therein contained as strong as the one 
which was stricken out is the only fair inference from the 
record, and no other conclusion can be drawn from the 
subsequent action of the convention, or from the posi- 
tion assumed by the Federalists as well as by the 
Nationalists. 

After the amendment of the first resolution of the 
Randolph plan, by a unanimous vote, as just recited, 
Mr. Lansing moved to change the second resolution re- 
specting the composition of the legislature. The report 
provided for two Houses ; the federal idea was that there 
should be but one. On his motion to amend Mr. Lan- 
sing said ; "The true question here was whether the con- 



OF THE UNITED STATES 89 

vention would adhere to, or depart from, the foundation 
of the present confederacy." After being discussed for 
two days by the ablest members of the convention, and 
the merits of each system having been elaborately stated, 
the convention again, by a vote of seven States against 
three, with Maryland divided, refused to sanction the 
federal theory, and adopted the resolution as reported 
in favor of two Houses, 

Again, on the third resolution, the Federalists pro- 
posed that the first House should be elected by the State 
legislatures instead of by the people as provided by the 
resolution reported. This proposed change was voted 
down by six States against four, Maryland still divided, 
and South Carolina on this question voting with the 
Federalists. 

With these decisive votes on a direct Issue made by the 
Federalists themselves, and after full and fair debate, 
can anyone say that by the adoption of the Ellsworth 
amendment to the first resolution the convention had 
any Idea it was now providing for a confederacy.'* The 
same question in a different form was raised from time 
to time more or less directly, but in no case did the con- 
vention recede from the position it had taken. When 
the last resolution, which provided that the Constitution, 
when completed, should be submitted to conventions of 
the people for ratification, came to be considered, Mr. 
Ellsworth moved that in place of the people it be sub- 
mitted to the State legislatures for ratification. Of 
course this raised the whole question of the difference 



90 CONSTITUTIONAL HISTORY 

between a nation and a confederacy, and the matter was 
again discussed at length. Mr. Gouvemeur Morris 
said: "The amendment moved by Mr. Ellsworth er- 
roneously supposes that we are proceeding on the basis 
of the confederation. This convention is unknown to 
the confederation," And Mr. Madison said: "He con- 
sidered the difference between a system founded on the 
legislatures only and one founded on the people, to be 
the true difference between a league or treaty, and a 
constitution.^* The motion of Mr. Ellsworth was re- 
jected by a vote of seven States against three. 

In reference to the formal closing of the Constitu- 
tion — "Done in convention by the unanimous consent of 
the States present," etc., Mr. Madison says: "This 
ambiguous form had been drawn up by Mr. Gouvern6ur 
Morris in order to gain the dissenting members." But 
none of the delegates seemed to regard it as of any 
moment, and with few exceptions the delegates signed 
the document. 

That the convention did not understand it was 
amending the articles of confederation is farther con- 
clusively shown by its action providing for the rati- 
fication of the Constitution. The thirteenth of the 
articles of confederation provided that any proposed 
amendment thereto should not take effect till approved 
in Congress and ratified by all the States. Not only did 
the convention refuse to submit their work to the State 
legislatures, but it also positively refused to submit it 
to Congress for its concurrence. It simply sent it to 



OF THE UNITED STATES 91 

Congress for it to submit to the people, and not to either 
approve or reject. On a proposition that the Constitu- 
tion "should be laid before the United States in Con- 
gress assembled, for their approval," on a vote of eight 
States to three the words ^^for their approval'^ were 
stricken out, and only the part referring the Constitu- 
tion to Congress was passed ; of course this reference 
to Congress was made as the proper body to communi- 
cate with the people of the several States. There was 
no misunderstanding about this at the time, for Con- 
gress took no action thereon, and made no move to take 
any, except to send it to the several States for action by 
the people as the convention had directed. 

Now, leaving the proceedings had in convention it- 
self, let us see what some of the leading Federalists 
thought the convention had done, as shown by what 
they did and said after the convention had adjourned. 
New York was represented in the convention by Alex- 
ander Hamilton, Robert Yates, and John Lansing, the 
first being in favor of a strong National Government and 
the last two in favor of a confederacy. On July 5th, 
Mr. Yates and Mr. Lansing withdrew from the conven- 
tion, and, after its adjournment, they wrote a com- 
munication to Governor Clinton in vindication of their 
course. After stating their impression of what, under the 
circumstances, they ought to do, they gave their reasons 
for opposing the work of the convention under two 
heads : "First, the limited and well-defined powers under 
which we acted, and which could not, on any possible 



92 CONSTITUTIONAL HISTORY 

construction, embrace an idea of such magnitude as to 
assent to a general Constitution, in subversance of that 
of the States. Second, a conviction of the impractica- 
bihty of establishing a general government pervading 
every part of the United States, and extending essen- 
tial benefits to all." 

They then state at length what they supposed the 
legislature expected of them under the power conferred 
upon them, and also their objection to the Constitution, 
even if their powers had been such as would have enabled 
them to act upon it, and thus conclude: "These rea- 
sons were, in our opinion, conclusive against any system 
of consolidated government; to that recommended by 
the convention we suppose most of them very forcibly 
apply. . . . We have thus explained our motives 
for opposing the adoption of the national Constitution, 
which we conceived it our duty to communicate to your 
Excellency, to be submitted to the consideration of the 
honorable legislature." 

Mr. Yates was one of the leading lawyers of New 
York and was thereafter appointed Chief-Justice of the 
State. No one can doubt his ability to understand the 
force of what the convention had adopted, and he called 
its work a national Constitution. 

Another leading member of the convention, and, per- 
haps, the one who most ably presented the federal 
theory, as opposed to the national plan, of all those 
who took part in the discussion, was Luther Martin, a 
delegate from Maryland, and, at the time, her attorney- 



OF THE UNITED STATES 93 

general. After the adjournment of the convention he 
delivered a very lengthy address before the legislature 
of his State in which he detailed the work of the con- 
vention and stated his reasons for refusing to support 
the Constitution. After stating that the convention was 
made up of three parties, styled by him, first a mo- 
narchical party, second a party who wished to secure to 
the larger States undue power ; of the third Mr. Martin 
said: "A third party was what I considered truly fed- 
eral and republican ; this party was nearly equal in num- 
bers with the other two, and was composed of the dele- 
gations from Connecticut, New York, New Jersey, 
Delaware, and, in part, from Maryland ; also some in- 
dividuals from other representations. This party, sir, 
were for proceeding on terms of federal equality; they 
were for taking our present federal system as the basis 
of their proceedings, and, as far as experience had 
shown us that there were defects, to remedy those de- 
fects; as far as experience had shown us that other 
forces were necessary to the federal government, to give 
these powers." 

Mr. Martin then went on at great length to show that 
a majority of the convention refused to adopt any feat- 
ure of the federal policy, but, on the contrary, pro- 
vided for a strong central government which, in his 
opinion, was destructive of the principles of liberty. No 
quotation from this address can be made that will fairly 
state Mr. Martin's views without being too long to ad- 
mit of insertion here. But his argument is unmistak- 



94 CONSTITUTIONAL HISTORY 

able, and his conclusion is undisputed, that the conven- 
tion had refused to base its idea of government on the 
States as sovereign political bodies, but had made its 
organic unit the individual citizen. Whatever conclu- 
sion anyone may come to as to what the convention act- 
ually did, he cannot read Mr. Martin's address without 
the conviction that at least this delegate believed the 
convention had provided for a dissolution of the con- 
federacy and on its ruins the establishment of a strong 
National Government, in which the sovereignty of the 
States was to be lost. 

Elbridge Gerry, of Massachusetts, also refused to 
sign the Constitution, and, in giving his reasons therefor 
to the legislature of his State, said : "The Constitution 
proposed has few, if any, federal features, but is rather 
a system of national government." He submits to his 
State the propositions: first, "Whether there shall be a 
dissolution of the federal government; second, Whether 
the several State governments shall be so altered as in 
effect to be dissolved; third. Whether, in lieu of the 
federal and the State governments, the national Con- 
stitution now proposed shall be submitted without 
amendment." 

It seems to me that what I have given should be satis- 
factory proof that the convention understood it was not 
amending the articles of confederation, but was prepar- 
ing for the organization of an independent national 
government. 



OF THE UNITED STATES 95 



WHAT THE CONVENTION DID 

I have already spoken, perhaps sufficiently fully, of 
the argument and deductions made by certain writers, 
from the discussions had in, and the action taken by, 
the Constitutional Convention, but I again call attention 
to the subject in order to guard against being misled 
by it. The remarks of the delegates and the action of 
the convention are frequently spoken of as though they 
were from the principal, whose word and act were final ; 
when, in fact, the convention was not even an accredited 
agent of the principal — the people; it was but a self- 
constituted agent, or, at best, a subagent — one whose 
members were appointed, not by the principal, but by 
another agent of the principal, viz., the State legis- 
latures. This agent was using its best endeavors to pre- 
pare a document which it hoped would meet the approval 
of the principal whom it assumed to represent when it 
was submitted to it for its consideration. The delegates 
to this convention were wise, able, honest, and patriotic 
men, and as such the views which they expressed are en- 
titled to respect and consideration ; but it must be re- 
membered that they have no official significance, and are 
binding on no one. They understood then, as well as 
we now understand in the fuller light of history, that, 
with the divergent views entertained by the various mem- 
bers, if they accomplished anything it must be by way 
of compromise. When they had come to a point where 



96 CONSTITUTIONAL HISTORY 

it seemed that no agreement could be arrived at Dr, 
Franklin said : "When a broad table is to be made and 
the edges of the planks do not fit, the joiner takes a 
little from both and makes a good joint. In like man- 
ner, here, both sides must part with some of their de- 
mands, in order that they may join in some accommo- 
dating proposition." Under such circumstances many 
delegates advocated and voted for measures which did 
not express their real view, not what they would have 
been glad to accomplish, but only what they were willing 
to see adopted rather than that no result should be 
reached. Probably not a single member was satisfied 
with the Constitution which the convention proposed and 
for which he finally voted. But practically all the dele- 
gates supported it in the end as the most perfect plan 
that could be devised and agreed upon in view of the di- 
versity of opinion prevailing, and as the only means of 
escaping the perils threatened under the federal system 
then in operation. 

Again, the discussions which took place, the proposi- 
tions submitted, the amendments offered, and the votes 
taken in the convention cannot be appealed to as throw- 
ing any light on the subsequent action of the people in 
ratifying the Constitution, for the proceedings of the 
convention were secret, and were not published till years 
after the Constitution had been adopted and the Govern- 
ment thereunder had been in operation; being unknown 
to the people such proceedings could not have influenced 
their action in voting for or against the Constitution. 



OF THE UNITED STATES 97 

The people acted on the instrument as an independent 
document, and as such it is before us for interpretation 
as it was before them. 

As I have already pointed out the discussions and 
votes in the convention are, as I think, clearly repug- 
nant to the theory of those who so strenuously insist on 
the sovereignty of the States under the Constitution, 
and I should be glad to have every word spoken and 
every vote taken in the convention fully considered in 
determining the question I have considered, viz., what 
the convention thought it was doing. But I insist that 
such consideration has no place in determining what the 
instrument is on which the people acted. When pre- 
sented to the people the Constitution had to speak for 
itself. To the people who had to act on its adoption 
the question was, as to us who have to interpret it to- 
day it is, not what the convention thought it was doing, 
but what did it do — not what did the delegates think the 
instrument meant, but what does it mean — not did a 
majority of States represented in the convention prefer 
a confederacy, but did the Constitution which they pre- 
pared and asked the people to adopt provide for one? 

It is important to have in mind the distinction be- 
tween the two systems of government, each of which has 
been supposed by some to have been established by the 
Constitution. A confederacy is a government in which 
two or more independent States are united under an 
agreement or compact entered into between them 
whereby certain powers are delegated to a general 



98 CONSTITUTIONAL HISTORY 

government which exercises the powers conferred upon 
it, in so far as they relate to the individual States and 
their citizens, through the several State governments 
and not upon individuals directly. In a confederacy the 
general government recommends but it is left to the 
States to execute. A nation, on the other hand, is a 
sovereign, independent people, with a constitution, 
written or existing in and preserved through tradition, 
customs, and institutions, whose government operates di- 
rectly on the individual citizen and not mediately 
through another government. A confederacy exists 
through agreement, compact, or similar arrangement. 
A nation is founded by the sovereign act of the people, 
and its fundamental law, whether written or unwritten, 
is termed a constitution. 

The discussion of the Constitution after it was framed 
by the convention and while it was before the people 
for their adoption or rejection may have had some in- 
fluence on the people in the formation of their judgment 
as to whether they would or would not give to it their 
support. The views thus expressed may, in some meas- 
ure, be supposed to be the views of the people ; of course 
not necessarily so, and certainly the divergent views held 
and expressed by different speakers and writers could 
not all have been accepted by the people as the true in- 
terpretation of the instrument on which they were called 
to act. Still these discussions may be said, in some 
sense, to be a contemporary interpretation of the Con- 
stitution, and are not so irrelevant to a discussion of its 



OF THE UNITED STATES 99 

meaning, as understood by the people who adopted it, 
as are the speeches and acts of the delegates in the con- 
vention about which the people knew nothing at the time 
they voted on its ratification. 

In these discussions the series of papers prepared by 
Hamilton, Madison, and Jay, and universally known 
and referred to as the Federalist, stand pre-eminent alike 
for boldness, ability, comprehensiveness, and fairness. 
But in reference to these papers we should remember 
that the writers are speaking as attorneys rather than 
as judges. They very much desired the adoption of 
the Constitution, and, so far as they honestly could, un- 
doubtedly they said such things as they thought would 
influence people in its favor. Therefore their papers are 
not to be taken as those full, free, and unbiassed expres- 
sions of their individual views which might be looked for 
had they been given after the Constitution had been 
adopted. Everyone should understand that the views 
of these writers are to be gathered not from any one 
expression, or any one out of a number of papers. A 
recent writer, of whose work I have already spoken, has 
sought, inferentially at least, to array Hamiltop on his 
side in favor of an argument in favor of State sover- 
eignty and that the Constitution continued the con- 
federacy instead of creating a nation, and for this pur- 
pose he refers to a paper in the Federalist wherein Ham- 
ilton, in speaking of a possible conflict between the State 
government and the general Government, says that in a 
confederacy the people may be said to be masters of 



L.ofC. 



100 CONSTITUTIONAL HISTORY 

their own fate; but this author lays no stress on Ham- 
ilton's language in another sentence a little farther 
along in the same paper, in which he says that State 
governments will "afford complete security against in- 
vasions of the public liberty by the national authority." 
It is hardly fair to Hamilton or to the reader to call 
special attention to the word confederacy and to make 
no reference to the use of the word national when as- 
suming to arrive at Hamilton's idea of the kind of 
government provided for in the Constitution. 

Both Hamilton and Madison, in the Federalist, speak 
of the federal government, and use the word confed- 
eracy, and other terms of similar import, but each uses 
the term, not as the designation of a confederacy as dis- 
tinguished from a nation, but simply as a term in gen- 
eral use distinguishing the general from the State gov- 
ernment. In the same way are the word national and 
other similar terms used. I do not care to single out and 
emphasize any of these expressions, for I do not think it 
would matenally add to our knowledge of the Consti- 
tution or assist us in its correct interpretation. If the 
construction which I place on the Constitution cannot 
be maintained except on such technical quibbles I should 
not care to contend for it. I place my construction on 
the broad ground of the evident and plain meaning be- 
longing to the language employed and upon the uni- 
versally recognized rules of construction. I do not ask 
anyone to agree with me if he cannot do so for some 
better reason than through a distorted meaning being 



OF THE UNITED STATES 101 

forced into some unguarded language of those who took 
part in framing and adopting the Constitution. I 
think that any student of the Constitution can receive 
great benefit from a careful reading of the Federalist, 
and also from a study of such other discussions of the 
document as he has access to which took place in the 
various State conventions when the matter was before 
them for action. But these documents must never be ac- 
cepted as authoritative interpretations of the Constitu- 
tion. 

In connection with the conceded fact that the body 
politic is sovereign while the government is not, it has 
been said, "Destroy the government of a State and the 
State still stands; but destroy the government of the 
United States, and what single body politic remains? 
All that would remain would be the forty -five bodies 
politic — the States." The untenableness of this state- 
ment and of the inference sought to be drawn therefrom 
consists in the implied assertion that the States, as such, 
and as distinguished from the State governments, are 
indestructible, while the United States, as one people, is 
destroyed by the destruction of the general government. 
The States are no more indestructible than is the United 
States. The perpetuity of either, after the destruction 
of the respective governments, is conditioned on the will 
of the people. Destroy the government of Texas, and 
at the same time that of the general Government, and 
the people of Texas still remain and, unless deprived 
thereof by some superior force, are possessed of sov- 



102 CONSTITUTIONAL HISTORY 

ereign power. As such they may decide to form a new 
government, with the same boundaries and containing 
all the people who were embraced in the original govern- 
ment. But they are not bound to do so; and, instead 
of this, they may divide into a number of separate terri- 
tories, a part of which may, with her consent, join 
Louisiana ; others may form two, three, or more separate 
State governments. In such event has not the State 
been destroyed? Certainly it is no longer Texas as 
Texas existed at the time of the supposed destruction 
of its government. What more destruction would occur 
to the United States in case of the destruction of the 
general Government.? The people as a whole originally 
formed that government, could they not do so again.'' 
All that can be said is that when government is de- 
stroyed governmental powers revert to the people, who 
may reform the old government, construct a new one 
on an entirely different basis, or divide up indefinitely, 
and each part for itself form such government as it 
pleases. The argument in favor of State sovereignty 
and a confederacy as the nature of the general govern- 
ment cannot be supported on the theory of the inde- 
structibility of States and the necessary destructibility 
of the United States as one people on the dissolution of 
all government. 

Of course we can hardly suppose the existence of the 
United States without the existence of the several 
States. Indeed, the United States Government could 
not exist without quite a degree of modification if there 



or THE UNITED STATES 103 

were no State governments. And yet the destruction of 
all the State governments, and still the preservation of 
the National Government, with the essential modifica- 
tions accomplished, is by no means inconceivable. State 
lines are erasable, while a State body politic is not indis- 
pensable, nor are its powers limited to an organization 
by itself alone. If two States may unite then forty-five 
may do the same thing. 

In each one of the United States there are two sov- 
ereignties — the National Government and the State 
government, each sovereign over the particular subjects 
which the people have committed to them respectively. 
So far as relates to the original thirteen colonies, the 
State governments were in existence before the forma- 
tion of the National Government, each exercising such 
sovereign powers as the people had committed to it, and 
in general these embraced all those executive, legislative, 
and judicial powers which are exercised by independent 
governments in reference to their internal affairs. Most 
of their international affairs had been placed under the 
care of Congress. He was the rare exception indeed, 
if anyone at all could be found at the time of the forma- 
tion of the Constitution, who would take from the States 
any of the powers of internal adminstration and govern- 
ment which they were then exercising. Conceding to 
the States the exercise of most of those powers of which 
they were already possessed, the problem was how to 
form the National Government with such powers com- 
mitted to its keeping as the people desired to bestow 



104 CONSTITUTIONAL HISTORY 

upon it, and at the same time have a harmony In the. 
workings of the two governments. 

Of course the Constitution of the United States could 
not undertake to define the powers possessed by the 
State governments ; it was not framed for that purpose 
and the State governments being already organized and 
possessed of their powers there was no need that such 
powers should be mentioned, except in so far as the peo- 
ple desired to withdraw from the State governments 
some of the powers they had theretofore conferred upon 
them, or else to expressly provide that thereafter no part 
of the people, that is, the people of no State, should 
confer on their State government certain powers which 
all the people desired should be possessed by the Na- 
tional Government, or else should remain with the people 
undisposed of and to be exercised by no government. 

The only feasible plan open to the framers of the 
Constitution was to define the powers that were to be 
committed to the National Government. Had there been 
no other government occupying the same territory and 
exercising authority over the same people, these powers 
might have been conferred in much more general terms, 
as had generally been done in the various State consti- 
tutions. But as two sets of officers were to exercise exec- 
utive powers, and two different legislative bodies were 
to enact laws, and two series of courts were to interpret 
and declare the law over and for the same people, it was 
necessary that the powers of each be so defined as that 
there would be the least possible ground for conflict and 



OF THE UNITED STATES 105 

misunderstanding. Those who framed the Constitution 
of the United States, therefore, undertook to make it 
specify and define the powers which were to be, by the 
people, conferred upon the National Government, and to 
specify the limitations which the people were to place 
upon the exercise of power by the several State govern- 
ments. 

This distinction between the two governments came to 
be somewhat generally expressed by saying that the 
State governments were governments of original powers, 
while the National Government was one of delegated 
powers, or by other terms and expressions of similar 
import. The expression original powers as thus applied 
to the State governments means no more than that these 
governments originally received their grants of au- 
thority from the people in general terms, and being in 
possession of such powers at the time of the adoption 
of the national Constitution they were left, in the main, 
undisturbed as originally given and expressed; while 
the term delegated powers or defined powers as applied 
to the National Government means that its powers, as 
conferred upon it by the people, are defined in the Con- 
stitution which created it. So far as the National 
Government was concerned the powers of the State 
governments were original, existing at the time of its 
creation, not named or defined -in the instrument by 
which it was created, while its own powers were delegated 
to it at the time, and were defined in the instrument by 
which it was created. 



106 CONSTITUTIONAL HISTORY 

This distinction between the two governments, or be- 
tween the two methods of expressing the powers which 
the people had conferred upon the two governments, 
naturally led the national courts to adopt this rule of 
construction, viz., if a power is claimed by, for, or under 
the National Government it will be denied unless it is 
conferred in express terms in the Constitution of the 
United States, or is there found by fair implication; 
but if a power is claimed by, for, or under a State 
government, such power will be presumed unless it is in 
conflict with some power given the National Govern- 
ment, or else is denied to the State government by the 
terms of the national Constitution, provided, of course, 
the power claimed is one which appropriately belongs 
to one of the three departments of government. Of 
course the presumption here spoken of is not con- 
clusive. 

I will now quote from a few authorities in reference 
to this rule of construction. Mr. Hamilton said: "If 
the end be clearly comprehended within any of the speci- 
fied powers, and if the measure have an obvious relation 
to that end, and is not forbidden by any particular 
provision of the Constitution, it may be safely deemed 
to come within the compass of the national authority." 
Mr. Cooley says: "To ascertain whether any power 
assumed by the Government of the United States is 
rightfully assumed, the Constitution is to be examined 
to see whether expressly or by fair implication the 
power has been granted, and, if the grant does not ap- 



OF THE UNITED STATES 107 

pear, the assumption must be held unwarranted. To 
ascertain whether a State rightfully exercises a power, 
we have only to see whether by the Constitution of the 
United States it is conceded to the Union, or by that 
Constitution or that of the State prohibited to be ex- 
ercised at all." Mr. Justice Story says: "The Govern- 
ment, then, of the United States can claim no powers 
which are not granted to it by the Constitution, and the 
powers actually granted must be such as are expressly 
given, or given by necessary implication." Chief-Justice 
Marshall says : "Let the end be legitimate, let it be 
within the scope of the Constitution, and all means which 
are appropriate, which are plainly adapted to that end, 
which are not prohibited, but consist with the letter and 
spirit of the Constitution, are constitutional." 

In discussing "What the Convention did," it has 
seemed to me to be necessary, or at least appropriate, 
to go into these matters of deduction and inference, 
which might appear to more appropriately belong to 
an interpretation of the Constitution than to constitu- 
tional history, in order to show that the Constitution is 
more than may at first sight appear on its face. What 
the convention did was to prepare and recommend a 
document which is much vaster in its scope and meaning 
than some persons have been willing to concede. It is 
this Constitution with a broad and deep meaning, suited 
to a great and expanding country through a long series 
of years, that I am trying to present in its historical 
aspect to my readers. 



108 CONSTITUTIONAL HISTORY 

Professor Tucker, whose work has already been re- 
ferred to, in order to have any foundation for his theory 
that the Constitution continued the old confederation 
and did not establish a sovereign nation, is compelled to 
make much of a few expressions in the Constitution 
which really have little significance, and to ignore or 
explain away the force of many other expressions which 
are full of meaning. He is thus confronted with the 
language of the preamble which declares that "We, the 
people of the United States," do establish this Constitu- 
tion; and he devotes much space to show that after all 
it was the States which established the Constitution. It 
is true he admits it was the people of the States, but the 
work was, as he says, the work of States as States, and 
not the work of one people. 

Of course it is true that the people of each State 
acted by itself in the matter of ratification. But they 
understood that they were acting on an instrument in 
which they declared themselves one people, and by which 
they, in their sovereign capacity, were establishing for 
themselves a government over a sovereign nation. 
Whether the people of all the States all went to the polls 
on the same day and voted, or were all assembled in one 
great body and thus voted, or whether they elected dele- 
gates to assemble in a number of conventions and there 
vote for them, made no difference. It is the fact that it 
was the people in whom sovereignty inheres who ratified 
the Constitution that is of paramount importance. The 
language of this preamble cannot be explained away. It 



OF THE UNITED STATES 109 

stands as the clear declaration of the party who made 
the instrument, and who is bound by it, that it is the 
work of the people of the United States. 

Whatever others may claim, it is not my position 
that the United States were one people, in the sense in 
which I now use that term, viz., as a distinct nation su- 
perior to the State governments, at the time of the con- 
vening of the Constitutional Convention, nor that they 
became so by the action of that convention, but only by 
the adoption of the Constitution by the people. I do 
not understand why writers labor so hard as some do to 
demonstrate the fact that it was not one people but 
thirteen, which adopted the Constitution. The impor- 
tant fact is not what they were before the adoption of 
that instrument, but what they became by its adoption. 
Thirteen men, perfectly free, and under no obligation 
to each other, consult and cause an instrument to be pre- 
pared providing for their forming themselves into a co- 
partnership. They were thirteen persons, and not one, 
before the instrument was written, and they so remain 
until they all execute it. They do not execute it as one 
person but as thirteen. When it has been fully exe- 
cuted, whether they do it all together in each other's 
presence, or whether it is done by them separately in 
thirteen different places, they become, by its very 
terms, one person, for the terms of the partnership. 
This illustration is given only for the purpose of indi- 
cating that a people need not be in one body when they 
act, and need not act all at once, and need not be united 



110 CONSTITUTIONAL HISTORY 

before the act in order to become one people — a new 
being — by their act. 

Preceding and during the convention there was no 
nation, nothing but a confederacy, in our present terri- 
tory, and this confederacy was composed of thirteen in- 
dependent States. There were, strictly, thirteen peoples. 
They proposed to become one people. They caused an 
instrument to be prepared providing for uniting them 
into one people — substituting a nationality for a con- 
federacy. Each of the thirteen people adopted and 
ratified this insti-ument. When this was done they were, 
for governmental purposes, no longer thirteen people 
but one. It was only upon the ratification of the Con- 
stitution that its language, "We, the people of the 
United States," became operative. 

In the discussion of constitutional questions we need 
not ignore common facts nor common sense. That the 
people of the United States have preserved their State 
organizations, and in each State their several municipal 
organizations, and that their will is expressed and their 
local governmental affairs are conducted through them, 
since the organization of the National Government, in 
the same way that they were before, is perfectly con- 
sistent with nationality, and is exactly what we 
should expect them to do. Practically there was nothing 
else for them to do. It would be impossible for them to 
meet in one body to conduct public affairs, or to take 
any political action. They must necessarily work 
through some local organizations in a nation no less than 



OF THE UNITED STATES 111 

in a confederacy. The mode of expressing themselves 
does not render them any the less one people. 

It is a rule of universal application in the construction 
of a legal document that its meaning is to be ascertained 
from the language which it contains. All that was said 
by those who drew it and by those who executed it, at, 
before, and after the time of its execution, all that was 
said by others, contemporary with its execution, as to 
what it meant, may, under certain circumstances and 
within proper limits, be referred to for the purpose of 
aiding him who is called in to declare what the language 
means ; but these helps are never to be used to overthrow 
the instrument, or to make it mean something different 
from what is conveyed by the language actually em- 
ployed. We may, all of us, who form the court of pub- 
lic opinion, refer to what was said by the delegates in 
the convention, to what they and others said while the 
instrument was under discussion before the people pre- 
liminary to its ratification, what men of learning and 
discernment said of it at that time and since, still, all 
of this is but to aid us in answering the question, What 
does the Constitution say, what does its language mean? 
And I insist that all which has ever yet been said on this 
question has not made out, and cannot make out, that 
the language, "We, the people of the United States," 
means that those who adopted it were speaking of thir- 
teen peoples, if that term can be allowed. 

The Constitution of the United States is our charter 
of liberty, it is the security for our persons and property. 



112 CONSTITUTIONAL HISTORY 

It is the safeguard against the destruction of our civil 
and religious rights, it is the only guaranty for our 
common right in the blessings that belong to us as citi- 
zens of this great nation. Each citizen now has, as those 
in the past had, the right to insist that its meaning shall 
be ascertained from the instrument itself, and not from 
what some one has said of it. If it is only a compact be- 
tween States, as the old articles of confederation were, 
then, like that, it may be annulled by any one of them. 
Rhode Island and North Carolina protested for a long 
time against the dissolution of the confederacy, but it 
had nevertheless taken place, and the Government of the 
United States under the Constitution was proceeding in 
its work in spite of their protest. If it could now be 
established that we are living under a federation and 
not in a nation, then there is no reason why this con- 
federacy might not be dissolved on the wish of any 
State. Citizens of Kansas might thus be deprived of 
the benefits of a government. embracing under its juris- 
diction California and South Carolina. 

It is strange that in the face of the language used in 
the Constitution, nothwithstanding the general tenor of 
the whole instrument, in spite of its provisions for na- 
tional sovereignty in all the features of general interest, 
and of the express declaration that this Constitution 
and the laws and treaties made thereunder shall be the 
supreme law of the land, politicians and writers may 
still be found who speak of it as a pact, or compact be- 
tween the States. Towns and corporations, as well as 



OF THE UNITED STATES 113 

States and independent nations, make compacts and 
agreements. Such agreements are binding only so long 
as each party chooses to abide by their terms. But the 
sovereign people of America, standing on the brink of a 
great political catastrophe from which they were anxious 
to escape, rising above the bickerings of party and 
clique, proclaimed to the world a Constitution. A con- 
federacy had brought them to the verge of ruin, and 
now, even those who had been wedded to the idea of 
State equality and State supremacy joined with those 
who saw more clearly the defects of such a system, and 
sank the confederation in order to make room for a 
nation. 

But it is said the word nation is not used in the Con- 
stitution. Nor is the word confederacy/ used therein. 
The absence of one of these terms is no more significant 
than is that of the other. But the word confederation 
is used in at least two places in the Constitution, and its 
use is very significant. Section 10 of Article I declares 
that "No State shall enter into any confederation." And 
Article VI declares that "All debts contracted and en- 
gagements entered into before the adoption of this Con- 
stitution, shall be as valid against the United States 
under this Constitution as under the confederation." It 
is the same people and the same territory now that it 
was before, but formerly this people lived under a con- 
federation, consisting of States bound together by an 
agreement or compact, now they live under a constitu- 
tion. The contrast between the two is recognized in the 



114 CONSTITUTIONAL HISTORY 

Constitution itself. Except for the prohibition that no 
State shall enter into any confederation such a compact 
might have been formed; it would not have been the 
formation of a new nation, but merely the making of a 
compact for their mutual profit. This same section ten 
also prohibits any State entering "into any agreement 
or compact with another State" without the consent of 
Congress. 

Section 1 of Article II declares that "No person ex- 
cept a natural bom citizen . . . shall be eligible to 
the office of President." A natural born citizen of what? 
If there was no nationality established embracing the 
citizens of all the States then this provision should have 
been a citizen of one of the States, but the inevitable 
inference to be drawn from the language is that the 
President must be a natural born citizen of the United 
States. 

That the government established by the Constitution 
is for a sovereign nation is also apparent from other 
provisions of the Constitution. Section 9 of Article I 
enumerates a number of things which Congress shall not 
do — among others that the writ of habeas corpus shall 
not be suspended except in case of rebellion or invasion, 
that no bill of attainder or ex post facto law shall be 
passed, that no title of nobility shall be granted. There 
is no direct provision in the Constitution for the exercise 
of either of these powers; why should Congress be pro- 
hibited from their exercise? Evidently because Con- 
gress, possessing the legislative authority of a sover- 



OF THE UNITED STATES 115 

eign nation, had the inherent right to exercise such 
power, on proper occasions, unless expressly prohibited. 
Substantially the same principle applies to a considera- 
tion of the first ten amendments to the Constitution. 

The claim in favor of a confederacy instead of a na- 
tion is not strengthened by pointing out, as some writers 
have done, special provisions in the Constitution recog- 
nizing the right of the States, and in some instances 
limiting their powers. Prior to the adoption of the Con- 
stitution the States were, as I think, and as I have stated 
time and again, sovereign. True, they had parted with 
the right of exercising certain features of sovereignty, 
which rights had been conferred on the confederation. 
But, speaking generally, I would say each State was an 
independent sovereignty. Neither the convention which 
framed the Constitution, nor the people who adopted it, 
had any thought of abolishing the States. Such a pur- 
pose was discussed both in the convention and before the 
people while the Constitution was before them for their 
action thereon. But no respectable number of people 
ever contemplated such a scheme. The question which 
all who had anything to do with it tried to solve was 
how a strong National Government could be formed and 
still leave the States in the full enjoyment of all their 
rights as far as they related to local self-government. 
The scheme devised seems an admirable one. 

Supreme sovereignty, residing with the people, was 
by them taken from the States and deposited with a 
new body politic by them created by a union of the 



116 CONSTITUTIONAL HISTORY 

thirteen separate ones which had theretofore existed, 
and the exercise thereof was conferred on the National 
Government in all matters affecting the general inter- 
est. But only in so far as it was conferred on the Na- 
tional Government was the exercise of sovereignty taken 
from the States. No State might any longer exercise 
the sovereign power of making treaties, regulating com- 
merce, levying war, or performing any of the great gov- 
ernmental acts, the management of which was conferred 
on the general Government. But within their sphere the 
States remained sovereign. The exclusive power of tax- 
ation for all State and local purposes remained with 
them ; over this matter each State is absolutely sovereign. 
And without going into details, it may be said that re- 
specting local government the State is supreme. 

But when this, which everybody concedes, has been 
stated, and stated as strongly as anyone is capable of 
expressing it, nothing has been said which, in any man- 
ner, weakens the force of the argument in favor of 
nationality as derived from the language used in the 
Constitution, and as corroborated by every feature of 
the people's action in any way connected therewith. Sov- 
ereignty and nationality are so unmistakably written in 
the Constitution that no one can ever hope to have 
enough ingenuity to devise an argument so strong as to 
destroy its belief in the minds of the people or to drive 
from them their faith in its reality. 

The equality of States in representation in the 
United States Senate is no argument for or against the 



OF THE UNITED STATES 117 

sovereignty of the nation. Every one at all acquainted 
with history understands how that feature of our 
government came to be adopted. Twelve States were 
represented in the convention. One-third of these, viz., 
Virginia, Pennsylvania, Massachusetts, and North Caro- 
lina, were much more populous than the rest and were 
termed large States; the other two-thirds were spoken 
of as the smaller States, although one or two of them 
usually voted with the larger States on questions affect- 
ing their interests. The larger States contended for 
representation in the Senate, as in the House, in propor- 
tion to population. The smaller States would not con- 
sent to this, and being clearly in the majority were able 
to control the convention so as to secure equality of 
representation in the upper House. As a supposed ap- 
parent equivalent they made certain concessions, but 
there was substantially nothing of value in them. No 
one at the time considered this as having anything to 
do with the question of sovereignty. 

When the English Government was organized on its 
modern basis of parliamentary representation, and the 
admission of the Commons as a controlling force in 
government, it found counties and boroughs existing as 
political units for local governmental purposes. Parlia- 
ment might have organized new electoral districts, but 
the most natural and convenient thing to do was to make 
use of these organizations which were already formed, 
and with which the people were familiar, for the election 
and return of its members. And so the people of the 



118 CONSTITUTIONAL HISTORY 

United States, when they organized the National Govern- 
ment, already had State governments to which they were 
strongly attached. They might have provided separate 
and independent political machinery for use in choosing 
members of the national legislature. But the natural 
thing to do was to adopt that already in existence. 
Senators and representatives are no less the people's rep- 
resentatives in the national legislature than they would 
be were they elected by a newly organized machinery, 
acting independently of State control. 

State sovereignty as properly understood, State 
sovereignty limited to matters which only aifect State 
government and local affairs, is the recognized American 
doctrine. But State sovereignty of the character which 
claims the right to break up the Union, and to start a 
new government on its own account, which defies the 
National Government and refuses to obey its laws, which 
interprets the Constitution as binding on it only so long 
as it chooses to remain associated with the Government 
and to voluntarily recognize its authority, is a doctrine 
unknown to the Constitution, and which the American 
people will never tolerate. 

I have now shown, so far as I think necessary, what 
the convention did. I have insisted that what it did 
shall be sought for in and determined from the result 
of its entire and complete action as embodied in the Con- 
stitution which it sent forth. When thus determined all 
who carefully and dispassionately consider it must say 
that the convention provided for the formation of a 
National Government. 



PERIOD OF ADOPTING AND AMENDING THE 
CONSTITUTION 

The preparation and adoption of the Constitution by 
the Philadelphia convention was secured only after a 
protracted and earnest discussion and controversy, at 
times bordering on a permanent division of parties and 
an abandonment of the work. Its passage through the 
convention was only secured by mutual concessions and 
compromises, and the surrender of personal preferences 
and convictions which betokened an appreciation of the 
great danger threatening the public peace and security, 
and the exhibition of a degree of patriotism which was 
as honorable as it was remarkable. 

A conflict no less exciting, a discussion no less earnest, 
a contest no less protracted, awaited the Constitution 
when it came before the people for their approval. Some 
hoped for farther compromises and concessions. But it 
was evident the period for compromises had passed. No 
provision existed for any modification of the instrument 
by the people in their delegated convention. It must 
either be adopted as a whole or rejected. It was a long 
time before it was by any means certain that nine States, 
the number required by its terms to put the Constitution 

119 



120 CONSTITUTIONAL HISTORY 

into operation, could be found which would give their 
adhesion to the new plan. The question as to the prefer- 
ence for a federation of States or for a nation had been 
fully discussed in the convention and that body had de- 
cided in favor of the latter. But the discussion was by 
no means ended with the adjournment of the convention, 
nor was the question yet decided. There was a strong 
Federal party in many of the States, and in some it 
seemed that this element might be sufficiently strong to 
prevent them giving their approval to the Constitution. 
The eloquence of Patrick Henry had its effect in Vir- 
ginia. It seemed probable that, except for the masterly 
arguments of Hamilton, Jay, and Madison, New York 
would have voted to reject the Constitution. 

While there were other objections urged against the 
Constitution, the one towering above all the rest and 
which most seriously threatened its rejection was the fear 
that the State governments must inevitably be swallowed 
up in the strong National Government for which the 
Constitution provided, and that personal liberty would 
perish with the destruction of the State governments. 

It should be noted that it was the men who, in the con- 
vention, had favored, and who had been instrumental in 
securing the adoption, by the convention, of this feat- 
ure of the Constitution, who were now forced to try and 
make it appear that, properly understood, the instru- 
ment was not as objectionable as many supposed it to 
be. The arguments of Madison and Hamilton are 
rather those of the attorney than of the judge and 



OF THE UNITED STATES 121 

should be so considered when we come to weigh them, as 
constitutional arguments. 

The result of these discussions in the various delegated 
conventions in the several States was that a series of 
amendments were formulated which were supposed to 
make provision for the better security of personal liberty 
and local self-government than might be expected under 
the Constitution as prepared by the convention. There 
was a general understanding and a tacit agreement that 
these amendments would, as soon as possible, be sub- 
mitted to the States for ratification, and soon form a 
part of the Constitution. It was, perhaps, only be- 
cause of this belief that several of the States gave their 
adhesion to the proposed government. 

By June 17, 1788, nine of the States had ratified the 
Constitution, and Congress at once proceeded to take 
the necessary steps to put the Government into opera- 
tion. Before the organization of the Government under 
the Constitution, in March, 1789, all of the States 
except North Carolina and Rhode Island had cer- 
tified their ratification of the Constitution to Con- 
gress. 

During its first session under this Constitution Con- 
gress approved and passed twelve of the amendments 
which had tacitly been agreed on in the several State 
conventions, and submitted them to the several State 
legislatures for their ratification. Ten of these were 
ratified by a sufficient number of the States to make them 
a part of the Constitution; the other two were never 



122 COXSTITUTIONAI. HISTOEY 

ratified bj three-fourths of the States. The amendments 
thus presented and ratified are the first ten amendments 
to the Constitution as thev now appear. 

These ten amendments are frequently spoken of as 
our bill of rights. They were intended to restrict and 
limit the power which was supposed to be guaranteed to 
the general Government by the Constitution. It is 
somewhat remarkable that, in the light of these amend- 
ments, anyone can claim that those who adopted the Con- 
stitution and who prepared these amendments, beheved 
they were continuing or forming a confederacy. Sub- 
stantially the whole argiunent in the State conventions 
against the Constitution was that it provided for a 
strong National Government. To reheve themselves from 
all danger on that account, they proposed these hmita- 
tions on the exercise of power by the National Govern- 
ment. It was under such behef and for such purpose 
that these amendments were proposed by the people, 
were submitted by Congress, and were ratified by the 
State legislatures. What stronger testimony than this 
could be ofi"ered as the contemporary construction of the 
Constitution by the people.^ 

In view of the claim made by the strict construction- 
ists it is also worthy of note that these contemporary 
constructionists did not thus understand the rule of in- 
terpretation, for scarcely a power which these amend- 
ments seek to take from the National Government, or of 
which they seek to deprive the National Government of 
the right to exercise, belongs to the Government except 



OF THE UNITED STATES 123 

as an inferential or constructive power. Nowhere in the 
Constitution is Congress given express authority to leg- 
islate respecting an established religion, nor to prohibit 
the people from keeping or bearing arms, nor to quarter 
soldiers on the people, nor to do other of the acts thus 
proliibited by said amendments. 

In 1792 the case of Chisholm, executor, against the 
State of Georgia was commenced in the Supreme Court 
of the United States to recover a debt. Cliisholm was 
a citizen of another State than Georgia. Article III, 
Section 2, of the United States Constitution provides 
that "The judicial power shall extend to all cases . . . 
between a State and citizens of another State." The 
same section further provides that "In all cases 
in which a State shall be a party the Supreme Court 
shall have original jurisdiction." In this case the State 
challenged the jurisdiction of the court, but the court 
held, on full consideration, that under the above consti- 
tutional provisions it had jurisdiction. This decision 
was announced at the February, 1T93, term of said 
court. 

At the opening of Congress the following December, 
an amendment to the Constitution was proposed, and 
subsequently adopted by Congress, excluding jurisdic- 
tion of the national courts in cases prosecuted against 
one of the United States by a citizen of another State 
or of a foreign country. On January 8, 1798, this 
amendment was declared a part of the Constitution of 
the United States, it having been ratified by the requisite 




124 CONSTITUTIONAL HISTORY 

number of States. It is known as the eleventh amend- 
to the Constitution. 

The purpose of this amendment is obvious. The peo- 
ple were jealous of their State's privileges, and were de- 
termined that no citizen of another State or country 
should be allowed to force a State to appear in one of 
the national courts against its will, and defend against 
claims which might be asserted against it. The decision 
in the Georgia case seems to have been fully warranted 
by the constitutional provision I have quoted, but prob- 
ably the people in adopting it did not fully comprehend 
the scope of the section. 

In the Presidential election of 1800 Jefferson and 
Burr received an equal number of votes for President. 
Of course no one had contemplated such a dilemma; it 
had been expected that Jefferson would be President and 
Burr Vice-President. When the result became known 
Burr not only did not explicitly relinquish any claim 
to the Presidency, but he and his friends took steps to see 
if it could not be secured to him. This practical illustra- 
tion of the danger in which the country could be placed, 
unintentionally, by an election under the Constitution, 
showed the defect of the second section of Article II of 
that instrument, and Congress at once took steps to cor- 
rect it. The amendment proposed provided for voting 
for one man for President and for another for Vice- 
President. This amendment was proclaimed a part of 
the Constitution on September 25, 1804, and appears as 
the twelfth amendment. 



OF THE UNITED STATES 125 

Other propositions for amending the Constitution 
were made, but not ratified, prior to the Civil War. The 
amendments which were the outgrowth of that struggle 
can better be presented in connection with a discussion of 
that period than in this place. I will therefore close the 
period of amendment with this short account of the 
adoption of the first twelve constitutional amendments, 



126 CONSTITUTIONAL HISTORY 



VI 



PERIOD OF CONSTITUTIONAL CONSTRUCTION 
AND EXPANSION 

BEGINNING OF PARTY CONFLICTS 

The Constitution having been adopted and the 
Government organized thereunder, the question still re- 
mained for decision whether, after all, the general 
Government could, when confronted by an actual test, 
put the provisions of the Constitution into active opera- 
tion as against the will of any portion of the people ; in 
other words, whether the confederacy had really been 
superseded by a nation. The opposition to the adoption 
of the Constitution rather than amending the articles of 
the confederation which had been exhibited in the Phila- 
delphia convention, and which had still later opposed the 
ratification of the Constitution by the several State con- 
ventions, was now at work to defeat the adoption of 
those measures by the general Government which its 
friends proposed as essential to its success. 

To a philosopher in his study, who is acquainted with 
philology and knows the meaning of words and sentences, 
it is no difficult matter to determine the meaning of a 
written Constitution. But to the politician and states- 
man the problem is very different. In a free govern- 



OF THE UNITED STATES 127 

merit a constitution will ultimately be held to mean what 
the mass of the people believe it means. And in arriving 
at its meaning not all of them will be guided by a critical 
definition of words. No one can give an intelligent ac- 
count of the formation of political parties in this country 
and arrive at anything like definiteness in assigning rea- 
sons why different individuals, as leaders, and those who 
became associated with them as followers, took the course 
they did. And yet this is, in a measure, bound up in 
constitutional history. From the organization of the 
Government there were two parties, holding divergent 
views, each striving for supremacy in this country. 

Jefferson was abroad at the time of the preparation 
and adoption of the Constitution and took no part in the 
public discussion which resulted from the effort put forth 
to defeat the final success of the measure. But his cor- 
respondence indicates that he was favorable to the 
adoption of the Constitution. While Madison, probably, 
had really more to do with their preparation than any- 
one else. Governor Randolph, of Virginia, introduced into 
the Constitutional Convention the original resolutions 
which formed the plan on which the convention pro- 
ceeded with its work and on which the Constitution was 
based. During the preparation and adoption of the Con- 
stitution by the convention and its ratification by the peo- 
ple, Mr. Madison was one of, the strongest advocates of 
the national idea. And it is, perhaps, not too much to 
say that to him, more than to any other one person, was 
the country indebted for the Constitution as it was finally 



128 CONSTITUTIONAL HISTORY 

adopted and ratified. Naturally we should expect these 
men to be found among those who were foremost in de- 
fending the Government in the exercise of all those 
powers which the Constitution confers on the general 
Government. But, strange as it may seem, these men, 
almost from the first organization of the Government 
under the Constitution, were among those who raised ob- 
jections, who suggested doubts, who openly or secretly 
opposed the measures and plans for developing and carry- 
ing on the Government, proposed by the national party 
of which Hamilton was the recognized chief. 

The change of opinion in these men whom I have 
named, and in other prominent men associated with them, 
is not to be attributed to dishonest motives. True, when 
they had chosen their course, they, as well as others, fre- 
quently went to extremes in their opposition, and put 
forth propositions which one can hardly think they can- 
didly believed, and which were to be expected only from 
a low-class politician. But we must assume that in their 
general course they were advocating policies which they 
honestly believed to be sanctioned by the Constitution. 
The trend of political influence then at work, personal as- 
sociations, the general views prevailing in their section 
of the country, combined, perhaps, with other influences, 
in producing the changes of political opinion which took 
place in several of the leading statesmen of the time. 

It is well to remember that from the organization of 
the Government political parties were, to a great extent, 
divided on geographical lines. Hamilton's adherents in 



OF THE UNITED STATES 129 

carrying out a national policy were largely in the North, 
while a majority of those who clung to the theory of the 
old confederacy, and who rallied under the standard of 
Jefferson, were from the South. Persons are drawn to 
party organizations through different motives. Why 
the North more than the South should favor a National 
Government is not easy to determine with any degree of 
accuracy. Commercial interests, political theories, 
family alliances, attachment to party leaders, local or 
sectional pride, added to a large amount of prejudice 
in many persons, will, in part, account for the political 
connections that we encounter in the study of history. It 
seems as though, somewhat intuitively, the two sections 
of the country thought and acted in different political 
channels. 

Whether or not we agree as to the reasons therefor, 
the fact cannot be disputed that Washington found him- 
self dealing with two antagonistic forces — one believing 
in nationality and convinced that a true construction of 
the Constitution authorized the general Government to 
adopt those plans, and put in operation those measures," 
which would effectively carry out the policy of making 
the National Government independent of State control; 
the other made up of persons of different views, some 
strongly tinctured with the idea that the States had not 
lost their sovereignty, some holding that the general 
Government could exercise only such powers as were ex- 
pressly given in the Constitution, others believing that 
personal liberty was only safe under State control, and 



130 CONSTITUTIONAL HISTORY 

all uniting in opposing any exercise of force by the gen- 
eral Government for the enforcement of any of its 
measures which met with opposition. Some opposed this 
exercise of force on the ground of policy and some on the 
ground of principle. As I have said, the controlling 
strength of the first of these parties was located in the 
Northern States, and generally acknowledged Hamilton 
as the ablest exponent of its principles, while the strong- 
hold of the party which I have last described was in the 
South, and Jefferson was its admitted chief spokesman. 

A correct idea of constitutional history will be obtained 
only by keeping these general facts in mind and tracing 
their influence and workings more or less minutely 
through the administration of the Government during 
the first half century, and more, of its existence. Jeffer- 
son, and after him Randolph, was at the head of the 
State Department under Washington, and there little 
opposition to the full exercise of national authority was 
likely to arise for some time. But Hamilton, at the head 
of the Treasury Department, was at once called upon to 
propose plans and recommend measures to carry out 
which required the exercise of national authority, and 
this met with immediate and active opposition. 

The pressing need of the country was the settlement 
of its finances. The debt contracted in carrying on the 
Revolutionary War must be funded and provision made 
' for its payment. If the State debts contracted on that 
account were assumed by the National Government the 
creditors would thereby become interested in its preserva- 



OF THE UNITED STATES 131 

tion and success ; but if the payment of these debts were 
left to the States, then a large class of people, citizens 
and foreigners, would have a greater interest in the suc- 
cess of the State than in that of the National Govern- 
ment. On Hamilton's recommendation the general 
Government assumed the payment of the State debts. 

It also fell within Hamilton's sphere to provide means 
for meeting these vast obligations. The first excise bill 
proposed was a tax on spirituous liquors. Some other 
mode for raising the revenue might have been suggested, 
but Hamilton's idea was that the sooner the people 
throughout the whole country were brought directly in 
contact with the general Government, and were made to 
feel that it exercised a direct power on them individually, 
the sooner would its authority be acknowledged and the 
correct interpretation of the Constitution as a national 
document be established. 

The adoption of these measures and their enactment 
into laws met with serious opposition ; and when the law 
for raising revenue came to be put into operation the 
opposition which the politicians had expressed in words 
began to show itself by force on the part of those who 
were immediately affected by it. Some of the anti- 
nationalists had asserted that as a matter of policy the 
Government should not, while others had declared that, 
in fact, the Government could not, use force to compel 
obedience to its mandates. The first time this question 
came up for practical solution was in the whiskey re- 
bellion of western Pennsylvania during the first term of 



132 CONSTITUTIONAL HISTORY 

Washington's administration. Perhaps, so far as num- 
bers were concerned, the country was somewhat equally 
divided in opinion on this question. But, notwithstand- 
ing this general sanction of the doctrine held by the in- 
surgents, when President Washington called on the 
States for their quota of militia to suppress the in- 
surrection he found no serious difficulty in vindicating 
the authority of the Government. Thus was the first 
contest over the theory of nationality decided in favor 
of the Government. 

In 1796 a very able and exciting debate took place in 
the national House of Representatives over the right of 
that body to participate in the making of treaties, which 
embraced within its terms matters over which Congress, 
by the Constitution, was given jurisdiction. The ques- 
tion arose on a motion asking the President to furnish 
the House with certain papers relating to the negotiation 
of the Jay treaty with Great Britain which had been 
concluded the preceding year. After a full discussion 
the resolution was adopted by the House, which action 
amounted to a construction of the Constitution by that 
body limiting the exclusive authority of the President 
and Senate to negotiate treaties to those subjects which 
do not require any affirmative action by Congress to carry 
them out. President Washington refused to comply with 
the request on the ground that the House of Represen- 
tatives was no part of the treaty-making power and con- 
sequently to allow them to investigate the action of that 
department to which the Constitution had committed the 



OF THE UNITED STATES 133 

power of making treaties would be a dangerous precedent. 
Thus did the Constitution receive from the executive a 
construction directly opposed to that which had been 
given to it by the House of Representatives. Without 
directly receding from their position on this question as 
one of right, the House finally passed a bill carrying 
into effect the provisions of the treaty. 

This same question has arisen in the history of the 
Government several times since Washington's day. One 
of the notable instances in which it came practically be- 
for the country was in connection with the completion 
of the purchase of Alaska from Russia. The President 
and Senate had concluded a treaty for such purchase 
which involved the obligating our Government to the 
payment of a large sum of money. When the matter of 
making the appropriation came before Congress the 
question was very ably argued in the House of Repre- 
sentatives. This body secured a partial victory for its 
position by forcing, as a condition to the passage of the 
bill, a preamble which, in a measure, recognized the right 
of the House to act independently of the action which 
had been taken by the President and Senate in concluding 
the treaty. All that can be said on this question is that, 
as it now stands, the conflict between the President and 
the Senate on the one side and the House of Representa- 
tives on the other is unsettled,, but the theory maintained 
by the House of Representatives seems likely ultimately 
to prevail. 



134 CONSTITUTIONAL HISTORY 



ACQUISITION OF NEW TERRITORY 

It may be doubted whether the framers of the Con- 
stitution contemplated the enlargement of the territorial 
limits of the country over what they were at the time 
that instrument was prepared. Certainly no provision 
directly authorizing such enlargement, or even seeming to 
refer to it, is to be found in the Constitution. And noth- 
ing appears in the proceedings of the convention, or in 
the discussions which took place therein, in any way pro- 
posing that such a provision should be inserted. It is 
fair to infer that the matter was not in the mind of the 
convention ; at any rate, it is certain that the Constitu- 
tion does not directly, or by any necessary implication, 
provide for acquiring territory. 

Both before and after the adoption of the Constitu- 
tion the question of our national boundary excited a good 
deal of attention. And, strange as it may seem, there 
was then a party who favored restricting rather than 
pressing for an enlarged boundary, when that question 
Was up for settlement. Some of the people, afraid that 
the development of the West would be detrimental to the 
prosperity of the Atlantic States, preferred the Alle- 
ghany and Appalachian Mountains to the Mississippi 
River for a boundary on the west. But, of course, the 
better view of the country was in favor of as extended 
a boundary as we could obtain. It was only by the most 
persistent efforts on the part of our commissioners that 



OF THE UNITED STATES 135 

the Mississippi River was secured as our western limit. 
What we thus obtained was not the acquisition of new 
territory but the determination of what we should have 
as original territory. 

The first time the question of the constitutional au- 
thority of our Government to add to our territorial 
limits arose was in our negotiation with France in 1 SOS- 
OS, for the purchase of Louisiana. The Federalists, who 
had been supplanted in power by the Republicans, 
strongly opposed the purchase, partly, but not princi- 
pally, because of the effect it would have on the slavery 
question. They bitterly denounced the measure as un- 
warranted by the Constitution, and against the best in- 
terests of the country. President Jefferson frankly con- 
ceded that the purchase was not authorized by the Con- 
stitution, or rather that the purchase with a clause in 
the treaty of cessions providing for incorporating the 
territory into the Union was unauthorized, and he 
suggested the necessity of a constitutional amendment 
to meet the emergency. Unlike most of the Federalists, 
Hamilton, while he was a bitter antagonist of Jeffer- 
son, favored the purchase of Louisiana. He evidently 
saw no constitutional difficulty in the way. It is strange 
that Jefferson, a strict constructionist, who had been 
the leader of the opposition to the important measures 
of Washington's and Adams's- administrations, because 
they were not directly authorized by the Constitution, 
or because they had a tendency to centralization in 
government, should now assume the responsibility of 



136 CONSTITUTIONAL HISTORY 

such an important act as the purchase of Louisiana, 
with a provision in the treaty for its incorporation 
into the Union, when he acknowledged that it was 
wholly unconstitutional. It is probably an instance 
of the convictions of the patriot getting the better 
of the scruples of the politician. His action on this oc- 
casion has a tendency to lead one to doubt that his prior 
opposition to the Government measures was exercised in 
the best of faith. It may be that his political views 
underwent a material change when official responsibility 
rested on his shoulders — when he was called on to act for, 
instead of to criticise, the Government. His idea was 
that the purchase would need to be ratified by a consti- 
tutional amendment, and he actually drew an amendment 
covering such act, which he proposed to submit to Con- 
gress for adoption. 

But Jefferson's apprehensions in reference to the 
power of the Government to acquire new territory, by 
purchase or otherwise, and to incorporate the same into 
the Union, were unnecessary. The purchase was made, 
no constitutional amendment was passed, or even pro- 
posed, all departments of the Government treated the 
act as constitutional and binding, and scarcely anyone 
could thereafter be found who had the hardihood to 
question its wisdom. 

Different reasons have been given for upholding the 
authority of the Government to purchase new territory. 
Chief Justice Taney, in the Dred Scott case, seems to 
rely upon the constitutional provision authorizing Con- 



OF THE UNITED STATES 137 

gress to admit new States into the Union. But this is 
certainly a very unsatisfactory reason. At the time of 
the adoption of the Constitution there was a large extent 
of territory within our bounds, a part, at least, of which 
had been ceded by the States to the Union, and this pro- 
vision of the Constitution undoubtedly had direct refer- 
ence to such territory. That it could also properly 
apply to the admission of all States that might there- 
after be formed out of newly acquired territory is one 
of the many evidences of the wonderful adaptability of 
this document to the growing needs of the country — 
needs which could not, in the very nature of things, have 
been anticipated or foreseen by its framers. While it is 
good authority for the admission of new States, when 
they have attained that standing which warrants it, it 
is hard to conceive of a reasonable argument being 
founded on this constitutional provision in favor of the 
authority of the Government to purchase boundless tracts 
of wholly unoccupied territory. 

A much stronger reason, as I think, for such authority 
is that it is one of the inherent rights of a sovereignty. 
Every nation possesses it. There is no direct limitation 
in the Constitution on the Government's authority to 
make treaties with foreign nations. True, other depart- 
ments than the treaty-making power are given authority 
respecting many subjects about. which treaties may be 
negotiated, and in a sense some of these may limit the 
absolute exercise of the authority conferred on the treaty- 
making power. But in the absence of limitation it may 



138 CONSTITUTIONAL HISTORY 

well be said that the authority of the treaty-making 
power extends to all questions of national development 
and growth which are fairly within the general plan of 
government provided by our Constitution, and which 
relate to acts which a sovereign nation may perform. 

Indeed, as early as 1828, the authority of the Govern- 
ment to acquire the territory of Florida came before the 
Supreme Court of the United States, and the question 
was thus disposed of by the court, the opinion being de- 
livered by Chief Justice Marshall: "The Constitution 
confers absolutely on the Government of the Union the 
power of making war, and of making treaties; conse- 
quently, the Government possesses the power of acquir- 
ing territory, either by conquest or by treaty." 

The authority of our Government to acquire Texas 
by treaty or otherwise was strongly denied by John 
Quincy Adams. But at that time the chief objection to 
the acquisition of the State was not so much because 
of the want of power in the Government to make the pur- 
chase as it was the unjust course which had been pur- 
sued and the inexpediency of securing such additional 
territory. 

While, since the acquisition of the Louisiana territory, 
there has never been any serious doubt in the minds of 
most people as to the authority of our Government to 
acquire new territory, still, whenever that question has 
arisen, there have always been found some persons who 
questioned the right. To anyone who makes a close 
study of this subject it is apparent that, as a rule, the 



OF THE UNITED STATES 139 

persons who question the right of the Government to ac- 
quire additional territory have other than constitutional 
objections to such act; and it may well be doubted 
whether their constitutional doubts do not mainly arise 
from other sources than a careful study of the Consti- 
tution. 

The acquisition of Texas raised a constitutional ques- 
tion of great weight. Early in 1844 a treaty was en- 
tered into between a representative of the executive 
branch of our Government and a representative of the 
republic of Texas, providing for the annexation of the 
territory embraced in that republic to the United States. 
The President submitted this treaty to the Senate, where, 
in June of that year, it was rejected by a large majority. 
The President then recommended to Congress that Texas 
be annexed by a joint resolution of Congress, and this 
course was pursued. This resolution passed the House 
of Representatives without any great trouble, but en- 
countered serious opposition in the Senate. A number 
of Senators were of opinion that the only constitutional 
mode by which annexation could be secured was by treaty, 
and they refused to consent to the project of annexaticOe 
by joint resolution of Congress. Finally, a compromiat 
was proposed in the shape of an amendment to the Hoeen 
resolution giving the President a discretion of negotient 
ing a new treaty or submitting the old treaty of annexits 
tion to the Texas government for its approval, ^- 
authorized by the House resolution. A sufficient number* 
of Senators who opposed the House resolution on consti- 



140 CONSTITUTIONAL HISTORY 

tutional grounds allowed themselves to be hoodwinked 
into a belief that their objections were met in the amend- 
ment to give a majority of that body in favor of the 
adoption of the amended resolution. Thus, just before 
the close of the Tyler administration, the executive and 
legislative departments of government gave their ap- 
proval to an unprecedented measure which was, possibly, 
the most severe strain on constitutional construction 
which our fundamental charter had ever received. 

It is not sufficient to say that the President and both 
Houses of Congress may certainly do what the President 
and Senate alone might do, for that is not the question. 
The Constitution requires the consent of two-thirds of 
the Senate to ratify and make binding a treaty, and that 
is frequently impossible to obtain. Indeed, in the case 
under consideration it could not be obtained, and yet a 
majority of each House voted for the measure. Experi- 
ence shows that it is, as a rule, much easier to secure 
the passage of a law through both Houses of Congress, 
which requires but a bare majority of each House, than 
it is to obtain a two-thirds vote of the Senate to the ap- 
tt'oval of a treaty. By the admission of Calhoun him- 

P, then Secretary of State, he, with the President's 
thproval, chose the mode of annexation provided by the 
monse resolution, rather than that authorized by the 
ar endment, for the reason that a new treaty of annexa- 
fon would probably share the same fate in the Senate 
that the old one had sustained, and thus annexation 
would be defeated. It is thus seen that a measure which 



OF THE UNITED STATES 141 

could not, in all probability, have been made to succeed 
in the ordinary constitutional method was accomplished 
by this short-cut passage, unknown to the Constitution, 
and, as it seems to me, in direct conflict with its spirit. 

POWER OF CONGRESS OVER TERRITORIES 

In the Dred Scott case, decided in 1857, the Supreme 
Court of the United States held that Congress did not 
have the constitutional power to prohibit slavery in a 
territory, or to deny to a slave-owner the right to bring 
his slaves into a territory and then hold them as any 
person would hold chattel property. This decision, 
carried to its legitimate results, would be far-reaching. 
If, under the constitutional provision which gives Con- 
gress authority to "make all needful rules and regula- 
tions respecting the territory" of the United States, it 
may not prescribe rules respecting the rights of people 
therein to enjoy liberty, and to prohibit the establish- 
ment of any system or institution in such territory which 
would forever deprive people therein of their liberty, 
then it is impossible to say what limitations may not be 
placed on that provision. It is scarcely conceivable that 
this construction would have remained in force and been 
accepted as the true interpretation of that instrument 
had the administration of government continued in its 
ordinary course. But it was among the decrees of Prov- 
idence that this decision should be reversed by another 
tribunal, and in a wa}' far more effective than would 



142 CONSTITUTIONAL HISTORY 

have been reached by its reconsideration in the Supreme 
Court when a new set of judges should have succeeded 
those who announced the Dred Scott decision. That this 
decision was one of the strong forces which went to make 
up and hasten the final and irrevocable determination of 
the question of personal liberty in this country there 
can be no doubt. When, at the close of our country's 
remarkable conflict between the Government and those 
who attempted to secede from its jurisdiction, Mars laid 
down his axe, the Dred Scott decision, lying on one of 
the scales in the hand of Minerva, did not have weight 
enough to require a feather to be placed in the opposite 
scale to hold it down. 

SLAVERY AS AFFECTING CONSTITUTIONAL HISTORY 

The history of slavery in the United States forms no 
part of the plan of this work, but the constitutional his- 
tory of this country cannot be written without giving 
some consideration to the history of that institution. No 
one has ever attained great success who has given an 
affirmative answer to the Master's question : Do men 
gather grapes of thorns or figs of thistles.? Every step 
taken by any member of this Union in the matter of 
building a commonwealth on the politically and morally 
rotten principle that one man has a right to hold another 
as property, led, as all such steps must lead, toward the 
abyss of political destruction. 

While most of the Northern colonies had but few, at 
the outbreak of the American Revolution perhaps each 



OF THE UNITED STATES 143 

one of the colonies had some, slaves. That at that time 
the extirpation of slavery was fully expected to gradually 
take place in all the colonies seemed to be questioned by 
few. Many, perhaps most, of the leading men in the 
South, though they owned slaves, condemned the institu- 
tion as severely as did their countrymen in the North, 
and confidently looked, and earnestly hoped, for its 
abolition. 

In 1774, and again in 1776, the Continental Congress 
declared against the further importation of slaves. In 
drawing the Declaration of Independence Jefferson in- 
troduced as one of the charges in the indictment against 
George III that he had attempted to prevent the colo- 
nies from restraining this "execrable commerce." But, 
at the request of Georgia and South Carolina, Congress 
struck out this passage. From that time the sentiment 
of the extreme South seemed to have taken a decided turn 
in favor of slavery and the slave trade. 

In determining the rule for the apportionment of 
taxation the Continental Congress counted the slaves as 
equivalent to three-fifths as many whites. And, in 
1784, when the proposition was made to exclude slavery 
from the unoccupied territory south of the Ohio River, 
ceded to the general Government by North Carolina and 
Georgia, the measure was defeated in Congress, but six 
States voting in its favor. However, in 1787, the ordi- 
nance for the government of the territory north of the 
Ohio River, which included an absolute prohibition of 
slavery, was unanimously passed by Congress. 



144 CONSTITUTIONAL HISTORY 

These, and other historical facts, show that even under 
the confederation there was something of an issue be- 
tween the North and the South over the question of 
slavery. But from the time of the formation of the Con- 
stitution this question took a more decided turn. In the 
Constitutional Convention several propositions were up 
for discussion which had more or less to do with slavery. 
One of these related to the prohibition and suppression 
of the African slave trade, another to the master's right 
to have fugitive slaves returned, and another to the ques- 
tion of taxation and representation on the basis of the 
slave population. South Carolina and Georgia abso- 
lutely refused to take part in the formation of the Union 
if the importation of slaves was not allowed. Finally, 
to obtain their adhesion to the proposition for Union, 
even most of the Northern members consented to a bargain 
whereby there was to be equality of representation from 
all the States in the Senate, commerce was to be under 
the exclusive control of the National Government, and the 
slave trade was not to be prohibited prior to 1808. In 
the contest over allowing representation in Congress for 
slaves the question was combined with that of apportion- 
ing direct taxes, and the rule observed by the Continental 
Congress was again adopted of counting five slaves as 
the equivalent of three whites. In arriving at this de- 
termination most of the Northern delegates opposed it 
while most of those from the South favored it. 

From the course matters had taken in the Constitu- 
tional Convention most of the delegates seemed to appre- 



OF THE UNITED STATES 145 

hend that trouble for the new government was likely to 
arise over contests between the larger and the smaller 
States. But Madison, more farseeing in his vision than 
most of his colleagues, said, "It seems now to be pretty 
well understood that the real difference lay, not between 
the large and small, but between the Northern and 
Southern States. The institution of slavery, and its 
consequences, formed the line of demarcation. There 
were five States on the southern, eight on the northern 
side of the line." It was not long till the South took 
active measures to overcome the political inequality be- 
tween the two sections which Madison had pointed out. 

The first time any controversy arose in the new Na- 
tional Government over the question of slavery was in 
1790, when some petitions from certain Quakers were 
presented to Congress asking that body to do all within 
its power to abolish the slave trade. Of course all it 
could do at that time, under the Constitution, was to 
levy a tax of ten dollars on each slave imported. Noth- 
ing unlawful or unconstitutional was asked or even sug- 
gested. And yet, in the discussion which took place on 
a motion to refer these petitions to a committee, that 
same violent opposition from Southern members occurred 
which so often characterized their conduct in subsequent 
years. The defenders and promoters of slavery seemed 
to be aware that the perpctujty of the system could 
never be maintained upon the theory of a free discussion 
and an open consideration of the question on its merits. 

It took a number of years for the extreme partisans 



146 CONSTITUTIONAL HISTORY 

of slavery to consolidate the entire slave territory into a 
force that would stand together under all circumstances 
when a question arose, which, in any way, affected their 
institution, but from the foundation of the Government 
this consolidating process was at work. One can 
scarcely conceive of the baleful effects of slavery until 
he has traced the history of its workings through its 
various stages of insinuation into the legislation and life 
of the nation. It threw a blight over the prosperity of 
its own section of the country, and deadened the life-cur- 
rent of every industry which it touched. Its insidious 
grasp on the legislator, its demoralization of the public 
conscience, its corrupting influence on the political life 
of the country, was a steady growth, commencing with 
the birth of the nation and ending only in the knell of 
the institution in the cannonading of Sumter in April, 
1861. 

The debates and votes in Congress on the question of 
taxing the introduction of slaves, as authorized by the 
Constitution, on prohibiting the African slave trade, on 
the bill providing for returning fugitive slaves, on the 
proposed regulation of the traffic in slaves between the 
States, on the proposed exclusion of slavery from the 
territory ceded to the general Government by North 
Carolina and Georgia, on the proposition to suspend for 
a term of years the prohibition of slavery in the terri- 
tory northwest of the Ohio River, as enacted by the Con- 
tinental Congress in 1787, on the act for the admission 
of Missouri into the Union, even when we come no 



OF THE UNITED STATES 147 

further down than to this event in our history, show a 
gradual yielding and, in many instances, a cringing 
spirit, on the part of the Northern members of Congress, 
and a constantly increasing boldness and shamelessness 
in the defence of slavery, and for the protection of slavery 
by the general Government, on the part of the members 
from the South. The brutal treatment accorded to many 
persons who went south to make a home, but who re- 
fused to subscribe to the dictates of the slave-driver, was 
almost a necessary consequence from the position which 
the South had assumed. Slavery could not exist under 
the burning rays of free public discussion, and the tolera- 
tion of any sentiment opposed to its legitimacy and 
morality was suicidal. 

It was not wholly, or even chiefly — perhaps it would 
not be too much to say that it was not in any respect — 
because the interests of the North and the South in the 
establishment of a national bank, in internal improve- 
ments, in tariff legislation, in the strengthening of for- 
eign commerce, or in a hundred other respects, were op- 
posed to each other, that, to a great extent, the country 
was divided on these questions by geographical lines, but 
rather because the dominant issue of slavery absorbed 
every other question — industrial, commercial, financial, 
educational, moral — and made them all subservient to its 
domineering will. 

Up to the time when the Missouri territory applied 
for admission into the Union the debates and contests 
over the slavery question, while they had frequently been 



148 CONSTITUTIONAL HISTORY 

animated, had, nevertheless, been comparatively mild. 
But now the time had arrived when slavery must fight for 
its life — when a victory must be obtained or the institu- 
tion, by being restricted in territory, must enter on a 
period of gradual extermination. The slave-holders were 
fully alive to the importance of the issue, and made a 
determined stand against every effort looking in any way 
to a denial of the protection of the law to property in 
slaves to an equal extent that such protection is cast 
around other property, including the right to carry 
slaves into any territory of the Union. Not only was 
Maine to be kept from becoming a State until Missouri 
could be admitted without restriction as to slavery, but 
the concession was to be forced from its opponents that 
slavery should share equally with freedom in the division 
of the Louisiana purchase. After a two years' struggle 
a sufficient number of representatives from the free 
States yielded to the Southern demands to enable that 
section to carry her measures through Congress, and the 
Missouri Compromise of 1820 was an accomplished fact. 
The line of 36° 30' north latitude was to divide the 
free from the slave territory in that part of the Louisi- 
ana purchase which, as yet, formed no part of one of the 
States in the Union. 

Whatever may be thought of the possibility of recon- 
ciling the differences between the advocates and oppo- 
nents of slavery as they existed and had found ex- 
pression prior to the opening of the contest over the 
admission of Missouri, it is evident that from that period 



OF THE UNITED STATES 149 

the difference was irreconcilable, and that in the end one 
system or the other — that which defended free labor or 
that which sanctioned slavery — must become supreme in 
the Government, or else the nation must be divided. The 
Master had declared: "I came to set a man at variance 
against his father, and the daughter against her mother, 
and the daughter-in-law against her mother-in-law ; and 
a man's foes shall be they of his own household." These 
words had not spent their force. The principle therein 
announced, when applied to the spiritual realm, had pro- 
duced a moral revolution in human lives ; when applied 
to the field of politics it was just as certain to produce 
a revolution in human government. From the opening 
of the contest in 1818, which resulted in the Missouri 
Compromise, until the period of reconstruction at the 
close of the Civil War, slavery was asserting its supreme 
right to dictate in the affairs of government; and, 
coupled with this, its advocates were pushing the doctrine 
of State sovereignty. And all the time over the national 
head was held the threat that, in case the former was not 
conceded, by authority of the latter the Union should be 
dissolved. 

I have no hesitancy in presenting slavery as the con- 
trolling principle which developed the doctrines of nulli- 
fication and secession ; and therefore I deem it a necessary 
subject to discuss in treating the constitutional history of 
our country. To it can be legitimately and directly 
traced the Civil War which resulted in its overthrow, 
and from this flowed the wonderful constitutional changes 



150 CONSTITUTIONAL HISTORY 

embodied in the thirteenth, fourteenth, and fifteenth 
amendments to the Constitution. 

Several constitutional questions were raised in the dis- 
cussion over the admission of Missouri as a State in the 
Union, but the principle one bearing on constitutional 
history was that relating to the power of Congress to 
exclude slavery from the territory belonging to the 
United States. But, connected with this, was the doc- 
trine of State sovereignty asserted in its boldest form. 
While, during the course of this discussion, some of the 
Southern members of Congress took the bold and un- 
qualified stand that a citizen of a State had a right to 
take his slaves, the same as any chattel property, into 
any territory of the United States, and that Congress 
had no power to prevent him, the majority of the mem- 
bers from the South conceded, at least by their silence 
they acquiesced in, the claim put forth by the Northern 
members of Congress, that Congress had the constitu- 
tional right to exclude slavery from any territory. 
While the South gained virtually all she asked in the 
settlement of this controversy in 1820, and certainly 
achieved a great triumph, the affirmative action exclud- 
ing slavery from the territory north of 36° 30' north 
latitude was a legislative construction of the Constitu- 
tion that Congress had authority to legislate respecting 
slavery in the territories. 

The annexation of Texas raised several important 
questions, some of which had a distinct bearing on con- 
stitutional history. As early as 1824 Mexico had pro- 



OF THE UNITED STATES 151 

hibited further importation of slaves from foreign, 
countries, and had also declared those thereafter bom to 
be free. This same provision was contained in the Con- 
stitution given the provinces of Coahuila and Texas in 
1827. And, in 1829, the work of emancipation was com- 
pleted by a decree of the Mexican Government giving all 
slaves throughout the republic their freedom. 

Notwithstanding these provisions respecting the eman- 
cipation of slaves, during all these years settlers from 
the United States, mostly from the Southern States, had 
been pouring into Texas, many of them bringing their 
slaves with them and continuing to hold them in bondage 
in contempt of the Mexican Government. 

Under these influences Texas was fast becoming, in 
point of fact, an American province. The spirit of the 
Anglo-Saxon rather than that of the Spaniard domi- 
nated public matters. In 1836 Texas declared her inde- 
pendence. It is certainly not too much to say that citi- 
zens of the United States, if not the Government of the 
United States itself, contributed largely in bringing 
about this event, as well as in the subsequent events re- 
sulting in Texan independence and her incorporation 
into the American Union. From the declaration of 
Texan independence in 1836, and even prior thereto 
down to the time of its annexation in 1845, officers anc 
agents of Texas had been negotiating with persons who 
were presumed to have some authority and, more or less 
directly, to represent the wishes of the executive depart- 
ment of the Government of the United States, with a 



152 CONSTITUTIONAL HISTORY 

view of securing the annexation of Texas to the United 
States. Probably there was no direct official authority 
for most of these acts. Still, the evidence is incon- 
trovertible that the Government of the United States 
was giving countenance to those acts which must ulti- 
mately result in annexation. 

One of the important questions connected with this 
extended controversy concerned the relation of the 
National Government to slavery. Theretofore no one 
had presumed that any obligation with respect to the 
protection of the interest of slavery rested on the 
general Government, except to provide for the return 
of fugitive slaves. But now the executive department 
of the general Government, assumed it to be its duty to 
interfere for the protection of slave interests in general. 
In his correspondence with the British Government John 
C. Calhoun, the Secretary of State, informed that 
Government that the action of our Government in ne- 
gotiating with the republic of Texas, in 1845, the 
treaty for its annexation to the United States, was 
based on the fear entertained by our Government that 
slavery was endangered by the avowed purpose of the 
irGovemment of Great Britain to use its influence toward 
la.:;curing emancipation in Texas. It was believed by 
ticne executive that the establishment of a government 
si vhich did not tolerate slavery, over territory adjoining 
the slave States of this Union, rendered the maintenance 
of slavery in the latter insecure, if not impossible, and 
consequently it became the duty of the National Govern- 



OF THE UNITED STATES 153 

ment to take prompt and effective action to prevent 
such a calamity. 

In the opinion of the executive department of the 
Government the protection of slavery had now become 
of national importance, even to the extent of interfering 
in the affairs of foreign nations to secure its preserva- 
tion and safety. Incredible as it now seems, thus 
rapidly had the theory of constitutional power, in the 
keeping of those whose fundamental principle of con- 
stitutional law had always been that of a strict con- 
struction, been extended by construction. Calhoun made 
the direct claim that such interference by the general 
Government was required by the constitutional compact 
for mutual defence and protection. It would be in- 
teresting to know how he would attempt to reconcile this 
construction of constitutional obligation with his gen- 
eral ideas of State's rights. 

Passing over the legislation of 1850 as requiring no 
extended comment in this connection, the next important 
events relating to the subject under discussion were 
connected with the Kansas struggle. It is hard to con- 
ceive how an American citizen can read the history of 
the passage of the Kansas-Nebraska bill without a feel- 
ing of the deepest disgust. The contest had its origin 
in a desire to advance party interests and to subserve 
personal ambitions. The country had passed through 
two fierce struggles over questions relating to slavery, 
both of which had been terminated, or, at least, were 
supposed to be terminated, by a compromise. By the 



154 CONSTITUTIONAL HISTORY 

Missouri Compromise of 1820 all parties understood 
that at least one feature of the slavery question was 
irrevocably settled — that slavery was permanently ex- 
cluded from all national territory north of 36° 30' 
then within the national domain. It is true that since 
the passage of the act occasionally its constitutionality 
had been denied by Calhoun and his friends. And some 
politicians now made the claim that this was a Northern 
measure, and that the South simply accepted at that 
time what the North voluntarily offered them. No one 
at all conversant with the struggle can fairly make any 
such claim. It is true that some of the propositions em- 
bodied in the settlement were offered by Northern mem- 
bers, and the whole measure was supported by many 
Northern members ; but the act as a whole was a Southern 
measure, forced through by the power of the South, 
and by them supposed to be largely to the advantage 
of the South. 

It is folly to attempt to represent that the measure 
had never been considered as of binding force. In giv- 
ing it his approval President Monroe had the ac- 
quiescence of Calhoun and all the other members of his 
Cabinet. The President and Cabinet, including Cal- 
houn, as well as the country generally, accepted the com- 
promise as a constitutional exercise of legislative au- 
thority, and treated it as such. At the time of the pas- 
sage of the Missouri bill scarcely anyone, if anyone at 
all, doubted the power of Congress to fully legislate 
respecting slavery in the territories, and practically the 



OF THE UNITED STATES 155 

whole country accepted the act excluding slavery from 
all territory north of 36° 30' as a constitutional and 
binding law. And this view, in the main, continued to 
be entertained in all sections of the country until the 
question of the repeal of the act was raised in 1854. 
Its validity had on one or two occasions been recognized 
by subsequent acts of Congress, and it may be said that 
all legislation which in any way bore on that question 
was enacted on the theory of the binding force of that 
statute. 

The second of the great controversies to which I have 
referred was that of 1850, and the compromise meas- 
ures of that year were passed without any serious ques- 
tion being raised as to the validity of the Missouri Com- 
promise. Notwithstanding declarations made in 1854 
by politicians then interested in avoiding the odium then 
attached to their acts, it is safe to assert that by the 
compromise laws of 1850 no one, either in or out of 
Congress, supposed the Missouri Compromise was im- 
paired. 

While it cannot be said that either the North or the 
South was satisfied with the compromise measures of 
1850, still, the country had apparently settled down to 
an acceptance of the situation, and general tranquillity 
prevailed. With the antagonistic feelings entertained 
toward slavery in different parts of the Union it is not 
at all likely that this condition would have continued 
any great length of time had matters been left to take 
their own natural course. But this does, not lessen the 



156 CONSTITUTIONAL HISTORY 

responsibility attached to the conduct of those who 
brought on anew the slavery controversy in order that 
they might secure personal and selfish ends. 

At the opening of 1854 there were practically no 
white settlers between the Missouri River and the Rocky 
Mountains. A bill for organizing Nebraska, embracing 
all this territory, had been pending in Congress for 
some time; it had passed the House in the session of 
1852-53. At the opening of the session in December, 
1853, Dodge, of Iowa, had again introduced the bill, 
and it had been referred to the Committee on Terri- 
tories, of which Douglas was chairman. In all the dis- 
cussion that so far had taken place it was not questioned 
that this territory was now subject to the Missouri Com- 
promise. 

There has been some question as to whom the honor, 
or censure, is due for originating the doctrine of 
squatter sovereignty. This principle, in general terms 
at least, seems to have been embraced in the bill for the 
organization of Oregon Territory in 1848, introduced 
by Mr. Douglas, which provided that the laws that 
had already been adopted by the settlers for their own 
protection should, in so far as consistent with the Con- 
stitution and laws of the United States, remain in force 
till modified or repealed by the territorial legislature. 
About the same time General Cass had, in a private 
letter, also expressed an opinion which contained the 
germ of the doctrine of squatter sovereignty. 

If Senator Douglas was not the originator of the 



OF THE UNITED STATES 157 

doctrine of squatter sovereignty he appropriated the 
discovery, and in January, 1854, as chainnan of the 
Senate Committee on Territories, he brought in a bill 
with a report recommending its passage. This act, as 
thus reported, organized the territory of Nebraska, and 
contained a section providing that the question whether 
slavery should or should not be allowed therein be re- 
ferred to the people of the territory for their determi- 
nation. This report, full of false inferences and state- 
ments, could not be looked upon in any other light than 
slavery's challenge to freedom for a renewal of the con- 
flict for supremacy in this country. The champions of 
freedom could do nothing less than accept the challenge 
and prepare for the battle. From the first it was evi- 
dent to discerning eyes that the struggle upon which 
they were entering was to be no ordinary one. 

The discussion of the measure had hardly commenced 
when the inconsistencies of the report and the defects of 
the bill were so apparent that the author of the bill felt 
compelled to alter and amend it. His evident purpose 
was to destroy the effect of the excluding provision of 
the law of 1820 without directly repealing the same. 
All knew very well that a proposed repeal of the Mis- 
souri Compromise would be looked upon as the grossest 
breach of faith, and would necessarily lead to the most 
bitter feeling between the two parties. But Douglas 
having opened the question was soon driven into pro- 
posing a direct repeal of the Missouri Compromise. And, 
instead of one territorial government, it was now pro- 



158 CONSTITUTIONAL HISTORY 

posed to establish two, Kansas and Nebraska, with the 
expectation that under the principle of squatter sov- 
ereignty slavery could be introduced at least into the 
Southern territory. If all this vast country then under 
consideration were organized into but one territory it 
was evident a great majority of the settlers would be 
from the North and would, by their votes, exclude 
slavery ; but with two territories it could be fairly pre- 
sumed that the settlers from the Southern States would 
substantially all go into the one nearest them and thus 
might have, under ordinary circumstances, a fair show 
of being in the majority. 

No one can seriously question that many of the argu- 
ments at this time put forth by the advocates of slavery 
extension in favor of the proposed measure were dictated 
by the necessities of the situation rather than by a fair 
consideration of the facts on which they were alleged 
to be based. It was asserted that the restrictive measure 
of 1820 had been virtually repealed by the compromise 
measures of 1850. But no one understood it so at the 
time, nor had such a claim ever before been put for- 
ward. And a reference to the measures which became 
laws in 1850 favored an acknowledgment of the con- 
tinued validity of the act of 1820 rather than looked 
to its repeal. The belief in the unconstitutionality of 
the act of 1820, now so generally put forward, was not 
formed so much from a more careful study of the Con- 
stitution in its relation to this measure as from a clearer 
vision that the necessities of slavery demanded such a 



OF THE UNITED STATES 159 

construction. It was not, at the time of the passage 
of the law in 1820, nor for many years thereafter, 
denied, even by the most pronounced advocates of slav- 
ery, that Congi'ess had the authority to exclude slavery 
from the territories. But as the interests, and, one may 
say, the very existence, of slavery demanded more room, 
and as a disposition to restrict its existence became more 
manifest, its advocates were forced to adopt the theory 
that Congress was without power to pass restrictive 
measures. This theory of constitutional interpretation 
was not generally put forth or seriously insisted on till 
the contest over the passage of the Kansas-Nebraska 
act. But whether the Missouri Compromise were a valid 
act, or whether, on constitutional principles, it were out- 
side the limits of constitutional authority, its repeal at 
this time cannot be defended on any ground of fair deal- 
ing. However, this feature of the question belongs 
rather to political than to constitutional history. Con- 
gress passed the Kansas-Nebraska act with the clause 
repealing the Missouri Compromise, and with the so- 
called squatter sovereignty doctrine among its pro- 
visions. The era of compromise had now passed. The 
war of principles now inaugurated was only to end after 
the fields of carnage, which followed this act as a 
natural consequence, had again been robed in green, 
through Nature's munificence., 

Except upon the theory of Providential interference 
in our national affairs to bring about the extinction of 
slavery no one can give a valid reason for the passage 



160 CONSTITUTIONAL HISTORY 

of the Kansas-Nebraska bill. From the statesman's 
point of view it was a national blunder. From the prac- 
tical politics standpoint it was suicidal. Upon any 
logical theory it was wholly without justification or ex- 
cuse. From the standpoint of a patriot it was one of 
the greatest outrages ever perpetrated by our national 
legislative body. 

The fierce conflict and border war that naturally fol- 
lowed the passage of the Kansas-Nebraska bill entered 
as a controlling factor into the political campaign of 
1856, and had no insignificant part among the causes 
which led to the promulgation of the famous Dred Scott 
decision by the Supreme Court of the United States. 
This decision was announced but two days after the in- 
auguration of President Buchanan, and was at once 
sent broadcast over the land as a campaign document 
by the promulgators of the slavocratic idea in the 
United States Senate. 

The Dred Scott decision was a matter of great mo- 
ment in the political history of the country and has an 
important bearing on constitutional history. It can 
hardly be expected that the general reader will be fa- 
miliar with the details of this great case, the record of 
which covers 240 pages in the official report. Perhaps 
I can state in a few sentences all that is necessary for 
one to know in order to understand the general bearing 
of the decision. 

Dred Scott was a negro slave owned by a doctor in 
the United States army stationed in Missouri. From 



OF THE UNITED STATES 161 

there he was taken by his master to Rock Island in the 
State of Illinois, where he was held some two years and 
then taken to Fort Snelling in the Louisiana territory 
north of latitude 36° 30' ; after remaining at his post 
some two years his master took him back to Missouri. 
In the meantime Dred had married and had a child bom 
to him, as the issue of the marriage, while in free terri- 
tory. Dr. Emerson, Dred's master, purchased this 
woman and took her and the child with Dred back to 
Missouri in 1838. Some six years after this the doctor 
died, leaving Dred and his family to his widow. Dred, 
becoming dissatisfied with his treatment, brought an 
action in the courts of Missouri to recover his freedom. 
In the lower court the decision was in his favor, but on 
an appeal to the Supreme Court of the State the de- 
cision was reversed. This litigation in the State courts 
had no connection with the case in the national courts 
and is only mentioned to guard against confounding the 
two. While the suit in the State court was pending 
Mrs. Emerson sold Dred and his family to a relative 
of hers, a Mr. Sandford, who resided in the State of New 
York. 

Dred now brought his action in the Circuit Court of 
the United States for the district of Missouri against 
John F. A. Sandford, who claimed to be his owner, to 
recover damages for illegally imprisoning him and his *" 
family. In his answer, Sandford set up that Dred was 
a negro, and therefore not a citizen of the State of Mis- 
souri, and, as a consequence, he denied that the court 



162 CONSTITUTIONAL HISTORY 

had jurisdiction of the case. The jurisdiction of the 
court was dependent on the question whether the parties 
were citizens of different States. Hence, if Dred was 
not a citizen of Missouri he could not maintain this 
action. Dred demurred to the defendant's answer and 
thereby raised the question whether, in law, a negro 
could be a citizen of Missouri. The Circuit Court over- 
ruled the demurrer and held that it had jurisdiction. 
The defendant then filed additional pleas in which he 
set up that Dred and family were his slaves, and there- 
fore his restraining them of their liberty was legal. On 
this issue the parties went to trial, which resulted in a 
verdict and judgment for the defendant; of course this 
was on the ground that Dred and his family were the 
defendant's slaves. 

Dred took the case on error to the Supreme Court of 
the United States, where it was fully and ably argued, 
both as to the jurisdiction of the court, and on its 
merits, provided that the court had jurisdiction. The 
Supreme Court held that a negro could not become a 
citizen of any State, and therefore, Dred Scott not be- 
ing a citizen of Missouri, the Circuit Court had no ju- 
risdiction and should have dismissed the case on the 
pleadings. 

On well-founded legal principles this should have ended 
the Supreme Court's decision, for if the Circuit Court 
had no jurisdiction there was nothing for it to decide — 
there was no case pending before it. Had the Supreme 
Court stopped here no criticism could have been made 



OF THE UNITED STATES 163 

upon Its action, although the decision Itself might well 
have been criticised and doubted as a correct exposition 
of the law. But the Supreme Court chose to pass on 
every question that would have been before It for 
consideration if the Circuit Court had rightly en- 
tertained jurisdiction. And this action subjected it to 
the severest criticism as being an attempt to control 
political action, In addition to exception taken to the 
correctness of the legal principle announced. 

The extra-judicial points thus passed on by the Su- 
preme Court were of the most momentous Importance, 
especially in view of the conditions then prevailing In 
Kansas. In addition to deciding several points which 
need not be mentioned here, it was held that the Con- 
stitution expressly recognized property in slaves, and 
that it was beyond the power of Congress to prevent a 
party taking his slaves to any territory and there hold- 
ing them as securely as he could any chattel property. 
It was therefore declared that the act known as the Mis- 
souri Compromise, which prohibited slavery in the terri- 
tory north of 36° 30' north latitude was unconstitu- 
tional. 

Without questioning the integrity of the court, or 
of any member thereof, that, in rendering this decision, 
they were controlled by political considerations seems 
beyond question. From the slave-holder's standpoint 
such a decision was demanded to insure their triumph 
in the contest in Kansas. As their interests had required 
It the claim began to be made that the owner had a right 
to take his slaves Into the territories. This was a modem 



164 CONSTITUTIONAL HISTORY 

doctrine and was put forth only because the interests 
of slavery absolutely demanded it. Such a claim was 
never thought of during the first half century's exist- 
ence of the nation, and, except for the pressing need 
for more slave territory, it would never at any time have 
been seriously pressed. 

The germ of this Southern doctrine was first devel- 
oped in 1847 in the debate over the organization of the 
Oregon Territory, and Mr. Rhett, of South Carolina, 
seems to have been the first to announce and defend it. 
His claim was that the general Government was not the 
real owner of the territory acquired since the adoption 
of the Constitution, but that it held the title to all the 
land, however acquired, as the agent of the several 
States, which, as sovereigns, had equal rights therein. 
And, as the States owned the territory, the citizen of 
any State could go into such territory with any prop- 
erty he could hold in the State from which he emigrated, 
and was entitled to the same protection for such prop- 
erty in the territory as he was in the State, both from 
the State and general Government. The following year 
this doctrine was further elaborated by Calhoun in the 
Senate, and the direct claim was then made that Con- 
gress had no power to prohibit slavery in the territories. 

As I have already said, it was contrary to the well- 
recognized rule in judicial proceedings for the court to 
enter on the consideration of this question in the Dred 
Scott case after it had decided that the Circuit Court 
had no jurisdiction of the case. That the Supreme 



OF THE UNITED STATES 165 

Court should have insisted on considering and deciding 
the question under such circumstances must be at- 
tributed to the desire on its part to stop the agitation 
in the North over the introduction of slavery into Kan- 
sas by deciding that it was already there, and beyond 
the control of anything that Congress might do in the 
premises. 

That the control of the Supreme Court by Southern 
interests had been designedly secured has been claimed, 
and certainly there is much on the face of the record 
to sustain such a claim. The circuits were so formed 
as to give the slave States an undue influence in the 
national judicial system. Of the nine members of the 
Supreme Court at this time three had been appointed 
by Jackson, two by Van Buren, one by Tyler, one by 
Polk, one by Fillmore, and one by Pierce. Five of 
them, a majority of the court, were from slave States, 
although, according to population and judicial business, 
a much larger share should have come from the North. 
But this is a matter which requires no further discussion 
in these pages. 

If the Dred Scott decision was to stand as the law of 
the land its eff*ect on the constitutional history of the 
country was to be almost incalculable. It was a well- 
known historical fact that in a number of the States 
negroes were given the right of suffrage and treated as 
full citizens of such States. By this Dred Scott de- 
cision not only their United States citizenship, but also 
their citizenship in their respective States, was taken 



166 CONSTITUTIONAL HISTORY "^ 

away, or denied to exist, and the constitutional pro- 
vision that "the citizens of each State shall be entitled 
to all the privileges and immunities of citizens in the 
several States" was held not to apply to negroes. 
There was no rule left determining who were citizens 
either of the State or the nation. The constitutional 
provision which I have just quoted received a legislative 
construction in 1821 which recognized the nationality 
of citizenship almost as broadly as it was subsequently 
declared in the fourteenth constitutional amendment. 
Missouri had provided in her Constitution that free 
negroes and mulattoes from other States should not be 
permitted to come within her borders. Congress re- 
fused to admit her into the Union except on the con- 
dition that this should never be construed to authorize 
her to exclude the citizens of any other State from 
rights and immunities to which they were entitled by 
the Constitution of the United States. Of course the 
Supreme Court was not bound by this legislative con- 
struction, which was intended to and did recognize ne- 
groes as national citizens when they were recognized as 
citizens by the State in which they resided. 

Again, historical considerations, the common rules of 
interpretation, and judicial principles, had to be ignored 
in order to hold that the right of property in slaves is 
distinctly and expressly affirmed in the Constitution of 
the United States, and that, under the Constitution, 
property in slaves was entitled to the same protection 
that was accorded to any other kind of property. It 



OF THE UNITED STATES 167 

would not be difficult to point out marked differences in 
the constitutional treatment of slaves and property. 

But that the condition of human beings in one of the 
territories was beyond the power of Congress to legis- 
late upon, or in any manner determine, was a proposi- 
tion so fraught with evil, so diametrically opposed to 
the opinion of the whole country, and to the con- 
struction which had been given to the Constitution 
by all departments of government for more than 
a half century, that the people were in no condition to 
accept it as a correct interpretation of our fundamental 
law, even when announced by the Supreme Court of the 
United States. If, by some means, the country could 
have found a solution for its troubles through some 
other tribunal than the fierce arbitrament of war, it can 
hardly be doubted that the constitutional construction 
announced in the Dred Scott case would have been re- 
versed by the Supreme Court itself when reconstituted 
and filled by a body of men whose intellect, conscience, 
and judicial discrimination, had been formed and de- 
veloped under conditions exempt from the blighting in- 
fluence and dictatorial views springing from human 
slavery. 

The Presidential campaign of 1860 aroused such a 
fierce sectional feeling that it could not be allayed when 
the election was over and the result announced. The 
Southern politicians had declared that the election of a 
Republican President would be a sufficient cause for a 
dissolution of the Union, and upon the election of Mr. 



168 CONSTITUTIONAL HISTORY 

Lincoln they proceeded to put their threats into exe- 
cution. As soon as the North was convinced that all 
this was not mere bluster, and that the country was 
really in a serious danger, a conciliatory disposition was 
manifested, and concessions were offered by the North 
which almost went beyond anything which the South 
had at any previous time asked. It is true that not all 
of these offers were put in a binding form; but they 
were favored by so many leading men of the North 
that it is practically certain many of them, at least, 
would readily have been granted if the South had mani- 
fested any disposition to accept them and desist from 
its mad course of secession. 

One of these offered concessions which took definite 
shape was a proposed amendment to the Constitution 
which passed Congress in February, 1861, and was sub- 
mitted to the States for ratification; this proposed 
amendment declared that thereafter no amendment 
should be made to the Constitution which would author- 
ize Congress to abolish or interfere with slavery in any 
State. The effect of this amendment, had it been rati- 
fied, would seem to be to make slavery perpetual. Had 
not the course of events precipitated the country into a 
civil war and thereby taken the question of slavery, to 
a great extent, out of the domain of voluntary settle- 
ment, we may not know what would have been the result 
of this proposed amendment. As it was the New Eng- 
land States rejected it, at least two States adopted it, 
but in most of the States no action was ever taken upon 



OF THE UNITED STATES 169 

it. A patriotic citizen must almost shudder at the 
thought of this proposed measure forming the thir- 
teenth amendment to the Constitution in place of that 
which was subsequently adopted as such. 

It was not long after the breaking out of the Civil 
War, in 1861, till the question began to be agitated as 
to what should be done with several classes of negroes. 
Some voluntarily came to our camps, some were taken 
prisoners in the capture of forts and camps, and large 
numbers came under our control when the lines of the 
Union armies were advanced into the rebel territory. It 
was some time, however, before the Government an- 
nounced any definite policy respecting its attitude tow- 
ard slavery. But finally, when it became apparent that 
the war was to be a prolonged one, and that slaves were 
adding immensely to the strength of the rebel forces, a 
decisive stand was taken. 

Without any prior announcement of what course he 
proposed to pursue President Lincoln issued his procla- 
mation on September 22, 1862, announcing that in all 
territory which remained in rebellion on the first of the 
ensuing year he should declare all slaves free. And on 
January 1, 1863, in accordance with such preliminary 
announcement the President issued his proclamation of 
freedom to all slaves within the rebel States. 

The President based this action solely on the war 
power of the Government. Of course there was differ- 
ence of opinion among the people as to the final effect 
of this proclamation on the status of the slaves whom 



170 CONSTITUTIONAL HISTORY 

it proposed to liberate. Fortunately, perhaps, the ques- 
tion never reached the courts. We can only conjecture 
as to what the Supreme Court would have decided in 
reference to the relation the rebel master would have 
sustained to his slaves which the President's proclama- 
tion had declared free. Before this could become a 
practical question for immediate solution the nation had 
settled the controversy by its sovereign will announced 
through the thirteenth constitutional amendment. We 
will not presume that slavery could ever have been es- 
tablished by civil process after the master had lost in 
his appeal to arms for the purpose of making the in- 
stitution perpetual. Happy for the country, however, 
that the question was definitely settled by the people in 
a constitutional manner without controversy. 

THE DOCTEINE OF INDESTRUCTIBLE STATEHOOD 

Our conception of "State," as applied to the members 
of the Union, is probably determined, to a great extent, 
by the idea we derive from the condition of the thir- 
teen original States at the time of the formation of 
the National Government. But our idea as thus derived 
can scarcely be appropriately applied to the States sub- 
sequently admitted into the Union, and especially to 
those formed out of territory acquired since the organi- 
zation of the National Government. 

With the original thirteen States we correctly asso- 
ciate the idea of sovereignty. Without again discuss- 



OF THE UNITED STATES 171 

ing, what I have spoken of in another place, the ques- 
tion of national sovereignty and State sovereignty under 
the Constitution, I may say that I think there can be 
no valid denial of sovereignty, at least in most respects, 
to each of the original thirteen States at the time of 
the formation of the Constitution. But this has never 
been true of the States subsequently organized and ad- 
mitted into the Union. There has never been a time 
when these new States have been sovereign in any true 
meaning of that term. The people of a State, and the 
State governments organized by them, have many quali- 
ties and attributes belonging to sovereignty, and in a 
limited and qualified sense they may be said to be 
possessed of sovereignty. But to speak of them as sov- 
ereign without an express or clearly implied limitation 
of the term is to deprive that word of its recognized 
meaning. 

For instance, we sometimes speak of a State as hav- 
ing an unlimited power of taxation, but, in truth, this 
power is limited to the extent that it cannot tax Govern- 
ment property or credits. When we say a State has 
the supreme power over the conduct of its citizens we are 
bound to remember that such power shall not interfere 
with the duties of such citizens to the general Govern- 
ment. It will thus be seen that upon any careful con- 
sideration of the question w6 cannot attribute sover- 
eignty to a State without, at the same time, limiting 
the meaning which is usually attributed to that word. 

In reference to the original States, while they may be 



172 CONSTITUTIONAL HISTORY 

said to have been sovereign at one time, yet, upon the 
adoption of the Constitution, the people withdrew from 
the State and conferred upon the National Government 
the essence of sovereignty. So that neither the original 
nor the new States can be spoken of as sovereign when 
we use that term with its usual and recognized mean- 
ing. We are not, therefore, called on to show the 
authority in the Constitution for the destruction of a 
sovereign State. 

Under our system of government a State is a politi- 
cal subdivision of the country, existing by virtue of 
fundamental law, possessing certain rights and privi- 
leges subject to change or abridgment by action of the 
people of the whole country, in the manner pointed out 
in the Constitution, even against the wish and active 
opposition of a State to be thereby affected, and cer- 
tain other rights of which it cannot be deprived except 
by its own voluntary consent. 

By action of the people themselves, each of these 
States is, in certain respects, subject to a superior power. 
The general Government is given authority to enter 
and act in every State. It does not ask permission of a 
State for the establishment of courts, the impanelling 
of juries, the punishment of criminals, the collection of 
taxes, and the doing of a hundred other sovereign acts. 
The National Government is clothed with authority, 
under certain conditions, to use force in any State. It 
has a right to the obedience of every citizen to those 
measures over which it is given jurisdiction. If this 



OF THE UNITED STATES 173 

obedience is not rendered voluntarily it may be com- 
pelled by force. All citizens must enjoy their State 
privileges and perform their duties to the State in sub- 
ordination to their obligations to the general Govern- 
ment. 

It necessarily follows that if the citizens of any State 
fail and refuse to discharge their obligations to the 
general Government within the sphere of its supremacy 
it may, by force if necessary, deprive such citizens of 
the right to enjoy and participate in State privileges, 
for they are held subordinate to national duties. In this 
way States may cease to exist as States. The territory 
remains and the people remain. The territory con- 
tinues to be subject to the jurisdiction of the general 
Government, and the citizens continue to owe it duties. 
They are still citizens although disloyal. Instead of 
possessing the rights of loyal citizens they have become 
criminals and may therefore be deprived of the exercise 
of those rights which they once enjoyed. That tract 
of country once forming a State may, by this means, 
become a territory, and, like territories which have never 
become States, be subject to such restrictions, entitled 
to such privileges, and placed under such government 
as Congress may prescribe. 

During and at the close of the Civil War there was 
a great diversity of opinion among statesmen as to the 
status of the seceded States, and their relation to the 
Union. For some time the prevailing opinion seemed 
to be that the States remained intact as they had been 



174 CONSTITUTIONAL HISTORY 

before passing the ordinances of secession, and that, 
upon the suppression of the rebellion, all that was 
necessary for such States to do was for their people to 
satisfy the Government of their loyalty, reorganize 
their State governments, and then to proceed as though 
nothing serious had taken place. President Lincoln 
seems to have entertained substantially this view, and 
President Johnson was persistent and obstinate in its 
advocacy. But Congress took a different and a truer 
view of the subject, and probably the constitutional 
doctrine may be considered as fairly well established 
that a State, by the action of its citizens, may be 
destroyed, so that its future relation to the National 
Government will be such as may be determined by Con- 
gress. I think it may be well questioned whether, 
under such circumstances, a State may not be divided, 
notwithstanding the constitutional provision that a 
State shall not be divided without its own consent. 



SECESSION UNDER THE CONSTITUTION 

The question of the binding force of the Constitution, 
and its power to hold together, involuntarily if need be, 
all the States of the Union, is a very old one ; but it is 
a question which, did not, for a long time, receive from 
statesmen that calm and earnest consideration which its 
merits, as we view it, would seem to require. It is not 
a question which, as some have assumed, has been uni- 



OF THE UNITED STATES 175 

formly assented to by one party and by one section of 
the country, and opposed by another party and by the 
other section of the country. Both the old Federalist 
and Republican parties of the first decade of the repub- 
lic, or at least large elements of them, were, at different 
times, on both sides of the question; and, likewise, both 
the North and the South, at different times, or rather, 
considerable portions of the people in each of the two 
sections, advocated secession at one time, and earnestly 
contended for the power of the general Government to 
execute its laws at another time. The change of posi- 
tion and the inconsistency of views of the people in 
different sections of the country, and of political parties, 
is a matter which must be acknowledged and, perhaps, 
in a measure accounted for. 

A study of this question reveals the fact that during 
the first quarter of a century of our national life the 
diverse financial, economic, and probably other interests 
of the people of this country were so great that they 
had practically prevented any political union taking 
place. When the Federalists were in power their politi- 
cal opponents were ready to consider a dissolution of 
the Union advisable whenever the Government was not 
administered to their liking. When the Republicans 
gained the ascendancy the views in reference to dissolv- 
ing the Union were reversed. Neither party had learned 
to regard, with an unfaltering conviction, the United 
States as a nation; that is, as possessed of the right, 
and as being under obligation to use all necessary power 



176 CONSTITUTIONAL HISTORY 

at her disposal for self-preservation, whenever her ex- 
istence was seriously threatened. 

It is not perfectly clear whether many of those who 
contemplated a division of the Union looked upon such 
a project as one which might be secured without a vio- 
lation of the Constitution, or whether they supposed 
that no serious obstacles would be thrown in the way 
of carrying out such a scheme when it was attempted. 
Probably the matter had not been sufficiently considered 
to enable most of those who talked on engaging in the 
scheme to have any settled judgment on that subject. 

It is evident that, during the time of which I am 
speaking, the advantages of the Union were but inade- 
quately understood and appreciated. A conviction in 
favor of nationality would not be determined by the 
masses from the language of the Constitution alone, be- 
cause we cannot presume that it would be at all care- 
fully read and studied by them; but such conviction 
would be, in a measure at least, influenced by what they 
supposed would be its effect on their general interests, 
and would be strong or weak in proportion as they re- 
garded it as favorable or detrimental to their happiness 
and commercial prosperity. There had not then been 
such a discussion of the question as to make clear to the 
people the great advantages they possessed as a single 
nation over what they would enjoy if divided into sev- 
eral small confederacies. 

From the time of Washington to Madison Northern 
as well as Southern statesmen, Federalists as well as Re- 



OF THE UNITED STATES 177 

publicans, spoke of a withdrawal of certain States from 
the Union with little apparent concern, and as an event 
that might be accomplished with little or no difficulty. 
And during all this time, and probably still later, it 
was not uncommon for statesmen to refer to the Con- 
stitution as a compact, and the Government as a con- 
federacy, without anyone thinking it necessary to call 
attention to the inappropriateness of such language, 
or to controvert the position which it necessarily 
implied. 

As early as 1794, during the time of the whiskey in- 
surrection in western Pennsylvania, the matter of a 
division of the Union on account of the effort to sup- 
press the revolt was considered as not improbable by 
North and South alike. Of course I do not mean that 
anything like the whole number of people in either sec- 
tion entertained such a thought, but large numbers of 
the people, including many leading men, did so think. 
When, in 1798, John Taylor, of Virginia, wrote Jeffer- 
son in reference to Virginia and North Carolina with- 
drawing from the Union and forming a confederacy by 
themselves, Jefferson put his objection to the scheme at 
the time wholly on the ground of expediency ; nothing 
was said against the principle. Again, in 1803, on the 
purchase of Louisiana, which was then generally con- 
ceded to be unconstitutional, by its friends and oppo- 
nents alike, threats were made by the opposition that 
it would dissolve the Union. As yet there was no 
strength to any of these secession movements, but the 



178 CONSTITUTIONAL HISTORY 

fact that such threats were seriously made is not with- 
out great significance. 

All the circumstances connected with the movement, 
in connection with what is said in their writings, seem 
to make certain what has, for a long time, been gen- 
erally conceded, that it was after consultation and 
agreement between them that Jefferson drew the reso- 
lutions which were passed by the House of Representa- 
tives of the legislature of Kentucky on November 10, 
1798, and by the Senate on the 13th of the same month, 
while Madison drew those which were passed by the 
House and Senate of the legislature of Virginia 
respectively on December 21st and 24th of the same 
year. 

The occasion of these resolutions was the passage, by 
Congress, of what was known as the Alien and Sedition 
laws, in contemplation of a war with France. These 
laws were generally denounced by the Republicans as 
unconstitutional, and the claim was now put forth that 
each State might determine this question for itself. 
Jefferson, especially, was glad to have an opportunity, 
which might fairly serve as an excuse, for the publica- 
tion of principles which he had for some time enter- 
tained, and the promulgation of which he deemed of 
vital importance to the success of his ambitious schemes. 
Owing, probably, to the division of sentiment in Virginia, 
the resolutions passed by the legislature of that State 
were somewhat milder in expression than were those 
passed by the Kentucky legislature. But the resolu- 



OF THE UNITED STATES 179 

tions of both States declared, in effect, that the bond 
of union between the States was a compact, to which 
the States are parties; that when the general Govern- 
ment goes beyond the powers conferred by the plain 
sense and intention of the compact the States have a 
right, and are in duty bound, to interpose and arrest 
the evil. The Kentucky resolutions declared "That the 
Government created by the compact was not made the 
exclusive or final judge of the extent of the power dele- 
gated to itself, since that would have made its discretion, 
and not the Constitution, the measure of its power; but 
that, as in all other cases of compact among parties 
having no common judge, each party has an equal 
right to judge for itself, as well of infractions as of 
the mode and manner of redress." A year later the 
Kentucky legislature declared that "the several States 
who formed the instrument, being sovereign and in- 
dependent, have an unquestionable right to judge of 
the infraction; and that a nullification by the sover- 
eignties, of all unauthorized acts done under color of 
the instrument, is the rightful remedy." 

Here, so far as public and responsible declaration is 
concerned, is the origin of the political heresy of nulli- 
fication and State sovereignty. While these doctrines 
professed to come as the expressed views of the legisla- 
tive bodies of two States, and, at the time, no one else 
was known in them, still, a"s a matter of fact, they 
originated with Jefferson and Madison, and these 
parties must be held responsible for the evil consequences 



180 CONSTITUTIONAL HISTORY 

naturally flowing from the promulgation of such 
opinions. Washington, in writing to Patrick Henry in 
reference to these resolutions, well said: "Measures are 
systematically and pertinaciously pursued which must 
eventually dissolve the Union or produce coercion." It 
would seem as though no one could view them in a less 
serious light. 

These resolutions were sent to the legislatures of the 
other States for their approval. Most of the Northern 
States emphatically repudiated the doctrine therein an- 
nounced, and at least one entered into a somewhat 
lengthy argument refuting the doctrine declared in the 
resolutions. 

The war of 1812 with Great Britain was never what 
may be termed a popular one. The opposition to it, 
while much stronger in New England than in other 
portions of the country, extended, to quite a degree, all 
over the Union. Nor was it confined to the Federal 
party. It is true that most of the Democrats supported 
the administration in the prosecution of the war, still, 
many of them had not been in favor of declaring war, 
nor were they averse to its determination. In view of 
all the facts it seems as though too much censure has 
been cast on the New England States for the course 
they took in this struggle. But that is a matter not 
within the scope of this work. The only thing con- 
nected with this war which is of importance from a con- 
stitutional point of view is connected with the doctrine 
of national supremacy. It cannot be denied that, to a 



OF THE UNITED STATES 181 

considerable extent, the opposition to the party in 
power now took the position that the Union had only 
the force of a confederacy, and that the States were 
not bound together by a national tie. This was not, by 
any means, the idea of the Federal party in general, 
but a large number gave their adhesion to this theory. 
In doing this they were but following in the steps which 
the present administration party had taken a few years 
before when the Federalists were in power. In fact, the 
parties had completely changed position. Those who 
had before denied the supremacy of the general Govern- 
ment were now asserting it, and were exercising all the 
authority conferred by the Constitution in maintaining 
such supremacy, while those who had previously claimed 
such authority for the general Government were now 
willing to concede very extensive powers to the States. 
In speaking thus of parties it must be remembered that 
what is said does not, by any means, apply in either case 
to anything like all the members of the two parties. 
Probably a majority of the Federalists were at all times 
firm believers in the national character of the Govern- 
ment, and many of the Republicans or Democrats also 
held the same view. But many of each party at different 
times held a contrary view, and the position taken by the 
controlling element in each party depended on whether 
or not it was in power. 

The Hartford convention, held at just the close of 
the war, and composed of delegates from Massachusetts, 
Rhode Island, and Connecticut announced substantially 



182 . CONSTITUTIONAL HISTORY 

the same constitutional doctrines as those contained in 
the Virginia and Kentucky resolutions. But the con- 
vention had no official character, did not by any means 
fully represent the views of the three States whose dele- 
gates composed it, and was of little political significance. 

On the whole the war of 1812 was favorable to the 
idea of nationality. The war party had taken such de- 
cided ground in favor of the exercise of national power 
by the general Government that it would thenceforth 
be difficult for it to repudiate such act. In fact, the peo- 
ple in general would have no desire to do so. And the 
utter failure of any party to make any success in propa- 
gating a spirit favoring a separation of the Union, or 
even favorable to the idea that the Government was only 
a confederacy, naturally weakened that sentiment even 
in the minds of those who announced it. 

The doctrine that a State had a right to nullify a law 
of Congress, having been declared in the Virginia and 
Kentucky resolutions, was occasionally referred to and, 
in a measure, approved by those in opposition to the 
Government for several years, but no practical applica- 
tion was attempted to be made of this doctrine until the 
time of the administration of John Quincy Adams. The 
Creek and Cherokee tribes of Indians had large pos- 
sessions within the bounds of the State of Georgia. 
This State was anxious to have them removed. Their 
rights were secured by treaties with the Government. 
An exciting contest between the State and national offi- 
cers arose respecting the course to be pursued toward 



OF THE UNITED STATES 183 

the Indians pending the efforts that were to be made for 
their removal. For the first time in our national history 
the doctrine of State sovereignty was now officially de- 
clared by the government of Georgia in its broadest 
form. The right of the National Government to enter 
the sovereign State of Georgia with its civil and military 
forces to enforce and carry out its treaty with the In- 
dians was absolutely denied by the State officers. The 
opinion announced by the Supreme Court of the United 
States was set at defiance, and the jurisdiction of the 
court would not be recognized. 

Jackson, succeeding Adams in the Presidency during 
the pendency of this controversy, gave way to Southern 
influence and, in a great measure, permitted the State 
authorities to carry out their project, and to render the 
national authority inoperative. Or, rather, perhaps it 
would be more correct to say, the national executive au- 
thority co-operated with the State officers in completing 
the nullification of the Government's treaties and laws. 

It was certainly fortunate for the country that, pre- 
ceding the attacks on the national authority by South 
Carolina under the leadership of Calhoun, there had 
taken place in 1830 the great debate in the Senate of 
the United States between Hayne and Webster on the 
Foot resolution. There was nothing in the subject em- 
braced in the resolution to naturally call forth such a 
discussion. But the South appeared anxious for an op- 
portunity to state her grievances, and to assert the doc- 
trine on which she seemed to rely for an ultimate vindi- 



184 CONSTITUTIONAL HISTORY 

cation of her rights. Hayne was ambitious for the 
honor of leading the forces naturally tending toward 
State sovereignty. In his first speech Mr, Hayne made 
somewhat general charges against those not in sympathy 
with the institutions of his section of the country, at- 
tacked the governmental policy for disposing of the 
public lands which had been pursued for many years, 
and stated the doctrine of State's rights to which he 
declared the South would appeal when necessary, for 
the preservation and maintenance of her rights. 

Mr. Webster replied to this speech and controverted 
the position assumed by Mr. Hayne. In his second 
speech Hayne was more specific in his statement of griev- 
ances, or, rather, in his complaints against New England, 
and more boldly announced the doctrine of nullification, 
which he claimed was a constitutional mode of redress 
when a State felt that its constitutional rights had been 
violated. 

Hayne was the first person to announce this strange 
doctrine from the halls of Congress. It is true it was 
but carrying out the doctrine proclaimed in the Virginia 
and Kentucky resolutions of 1798. But that was a 
very different thing from an announcement of the same 
error by a United States Senator from his place in the 
Senate. 

While this doctrine of nullification had been repeatedly 
stated in more or less formal manner since 1798 no one 
had ever stated to the country at large the false prem- 
ises on which it was based, nor was the country familiar 



OF THE UNITED STATES 185 

with the facts and principles sustaining the claim of 
nationality. In his last speech in reply to Hayne in the 
debate to which I have referred, Webster most satis- 
factorily answered all that Hayne had put forward and, 
more clearly than it had ever been given before, stated 
the doctrine of American nationality. Probably this 
speech of Webster had more to do in establishing correct 
principles in the minds of the people on the subject of 
nationality and State's rights than all that had ever 
been said prior thereto. 

The Georgia incident to which I have referred, and 
the debate in the Senate of which I have just spoken, 
were soon followed by a proceeding in South Carolina 
of a still more serious character than the one in which 
the Georgia officials had participated. The tariff laws 
had, in a measure, been based on the theory of protection 
to American industries from the foundation of the 
Government. The tariff acts of 1816 and 1824" were 
supplanted by one somewhat more protective in its 
tendency in 1828. While the South had quite generally 
favored former tariff acts she looked upon the act of 
1828 as calculated to offer protection to free labor, and 
now put forth the claim that the law was unconstitu- 
tional. It was thought by many that the election of 
Jackson to the Presidency this same year would prob- 
ably lead to the repeal of the tariff law of 1828 and an 
abandonment of the protective policy. But Jackson's 
position on this question was somewhat equivocal, and 
the friends of protection still maintained a majority in 



186 CONSTITUTIONAL HISTORY 

Congress. The extreme opponents of protection were 
disappointed and believed that some strong and decisive 
measures were necessary in order to preserve their rights. 
The centre of the opposition to the tariff was South 
Carohna, and Calhoun was now the recognized champion 
of that faction. He had been elected to the Vice-Presi- 
dency on the ticket with Jackson, and the two were, in 
a measure, but by no means wholly, in accord in their 
political views. 

During the second year of Jackson's administration 
he and Calhoun were completely estranged personally 
over a matter that had taken place some years before, 
but which had not, until that time, come to Jackson's 
knowledge. Calhoun now saw that his own political am- 
bition, which was the Presidency, as well as the policy 
of his State, could be assured, if at all, only by a bold 
course in resisting national authority. 

In 1831 Calhoun commenced the public discussion of 
the doctrine of State sovereignty, and the consequent 
right of nullification. The germ of the entire doctrine 
which he now put forth had already appeared in the 
Virginia and Kentucky resolutions of 1798, which had 
been somewhat elaborated from time to time since then. 
There was nothing new in what Calhoun said. But 
never before had the question received that careful con- 
sideration of a strong logician which was bestowed upon 
it by Calhoun. His several papers prepared at this time 
contain practically all that has ever been advanced in 
favor of the theory which he espoused. By his argu- 



OF THE UNITED STATES 187 

ments he probably did not so much hope to convert his 
opponents as to consolidate and strengthen those who 
already adopted his conclusions. 

The whole force of the argument for nullification lies 
in the assumption that the Constitution is only a com- 
pact, that the States are sovereign, that the bond be- 
tween them is only that of a treaty of alliance between 
foreign nations. Grant these premises and the conclu- 
sions which Calhoun and his followers drew therefrom 
naturally followed. But there is nothing on which his 
premises can rest. Starting out with a true statement, 
viz., that at the formation of the Constitution each of 
the thirteen States was sovereign and independent, he 
ignored the other truth that several independent States, 
and their citizens, may agree to surrender their indi- 
vidual sovereignty, either in whole or in part, and unite 
to form one new State with complete sovereign powers, 
when the people of all the States uniting have consented 
that such power shall belong to it. 

Calhoun contended that because the Constitution was 
not the work of the people collectively there was no such 
political body as the American people; that the people 
had been united, not as individuals, but as political com- 
munities — as States ; that as such they had formed and 
adopted the Constitution. His fault lay in discarding 
or ignoring the truth that the people are supreme; that 
whether they act in one aggregate body or, by agree- 
ment, in groups, their action is authoritative; that they 
may agree to have several sovereignties or one, and 



188 CONSTITUTIONAL HISTORY 

whichever plan is by them adopted is absolutely con- 
clusive. By the articles of confederation the States 
agreed — the people were not consulted — to remain sov- 
ereign. By the Constitution the people — the whole peo- 
ple, not acting in one aggregate body, it is true, for 
under the circumstances that was impracticable, but 
while acting in groups still acting in union — agreed to 
abandon the policy of supporting several sovereignties 
which they had theretofore approved, and out of them 
to form one sovereign nation, retaining the State or- 
ganizations for purposes of local government. It was 
as competent for the people now to form one sovereignty 
as it had been for them originally to establish thirteen. 
Their action in groups was no less binding on all, when 
all had given their assent in that form, than it would 
have been had it been taken in the aggregate. 

Calhoun says there is no direct relation between the 
citizen and the general Government. Had he said this 
of the old confederacy he would have been correct, but 
certainly he is incorrect in making such an assertion of 
the relationship of the citizen to our present Govern- 
ment, for such direct relationship is formed by the Con- 
stitution itself. Every provision of the Constitution im- 
plies this, and the force of the whole Constitution is 
based on this fact. This is the distinguishing feature 
between the articles of confederation and the Constitu- 
tion, and the fact plainly appears on the face of the two 
instruments. 

It is absurd to say, as Calhoun does, that, "It be- 



OF THE UNITED STATES 189 

longs to the State as a member of the Union, in her 
sovereign capacity in convention, to determine definitely, 
as far as her citizens are concerned, the extent of the 
obligation which she contracted." These citizens, in 
their sovereign capacity, had already agreed that this 
Constitution was the supreme law of the land, and that 
the national courts should have jurisdiction of all ques- 
tions which should arise thereunder. The Constitution 
does not pretend to act upon the States, but directly on 
the people. It uses the States as convenient means of 
division for apportionment and other purposes. But 
the National Government derives its revenue from the 
people, it gets its soldiers from the people, its judicial 
process extends to the people. 

The efforts of Calhoun resulted in a call by the South 
Carolina legislature, on the recommendation of the 
Governor, for a convention to take the necessary steps 
to prevent the collection of the tariff duties within the 
State. The convention met November 19, 1832, and, 
five days later, adopted an ordinance of nullification, 
whereby the tariff laws of 1828 and 1832 were declared 
null and void. It was further declared that in case of 
an attempted coercion on the part of the general Govern- 
ment the State would henceforth hold herself absolved 
from any obligation to maintain further political com- 
munication with the other S.tates. Decisive measures 
were taken by the legislature under this ordinance to 
enforce its provisions. 

On December 11, 1832, President Jackson issued his 



190- CONSTITUTIONAL HISTORY 

famous proclamation in which he asserted the supremacy 
of the National Government, and announced his determi- 
nation to enforce the laws. About this time Hayne suc- 
ceeded Hamilton as Governor of South Carolina, and 
was succeeded in the Senate of the United States by 
Calhoun, who resigned the Vice-Presidency to accept the 
position of Senator. The two contending forces having 
taken their stand the question was whether there was 
any way of avoiding a conflict without one or the other 
abandoning its position. Neither party was desirous of 
entering upon a conflict which all could see would be 
severe, if once commenced. 

Propositions were now made in Congress for a modi- 
fication of the tariff^, and also to give the President ad- 
ditional authority which would enable him to enforce the 
law. The result was that concessions were made on both 
sides. On the face of the record the administration 
carried its point. The force bill was passed and the 
revenue was collected. Still, quite a material change 
was made in the tariff duties which enabled South Caro- 
lina to give way without acknowledging that she had in 
any manner abandoned her position. For the time being 
the constitutional principle of nationality was success- 
fully asserted, and its moral eff*ect throughout the Union 
in strengthening the feeling opposed to State sov- 
ereignty was very great. 

In connection with the subject of secession, and as 
throwing light on the spirit of the South, an incident 
connected with the proceedings of Congress may be here 



OF THE UNITED STATES 191 

referred to. Excitement over the matter of presenting 
petitions for the aboHtion of slavery in the District of 
Columbia had been intense for months, and even years, 
past. In December, 1837, a number of such petitions 
were presented, and, in connection therewith, a motion 
was made by a Northern representative that they be 
referred to a special committee with instructions to bring 
in a bill for the abolition of slavery and also of the 
slave trade in the District of Columbia. No proposi- 
tion going to this extent had ever, prior to this, been 
introduced into Congress. The South was in a rage, 
and the anti-slavery members from the North were hop- 
ing for an opportunity to discuss slavery on its merits, 
and to administer to their antagonists some wholesome 
truths. But parliamentary rules were invoked which 
practically cut off discussion and closed the mouths of 
the anti-slavery members. While the controversy over 
this question was in progress several Southern represen- 
tatives called on their colleagues to leave the House with 
them. While nothing farther in this direction was done 
until after, on call of the roll, the House had, by a large 
majority, voted to adjourn, still, the Southern members 
were thereafter in the habit of referring to this inci- 
dent as the secession of the representatives from the 
South from the House of Representatives. 

On the following day the incident was closed by the 
adoption of the ordinary mouth-closing resolution, de- 
claring that all resolutions in any way relating to 
slavery be laid on the table without being read, printed, 



192 CONSTITUTIONAL HISTORY 

or referred, and that no further action be taken 
thereon. 

This occurrence was supposed to have some influence 
by giving the country a practical illustration of what 
the South would do whenever she felt that her interests 
called for so decisive an action. That her representa- 
tives in Congress were ready to secede whenever circum- 
stances demanded it they had liow, as they supposed, 
sufiiciently demonstrated. 

A threat of the dissolution of the Union for a reason 
other than one directly relating to slavery, although that 
question may also have entered into it, is here mentioned 
in order to show as fully as I can, within reasonable 
space, the scope of the anti-national feeling. Quite a 
strong opposition to the acquisition of the territory of 
Louisiana, in 1803, had been manifested in the North, 
but it was not till 1811, when Louisiana applied for 
admission into the Union as a State, that this opposition 
was seriously and passionately urged in Congress. John 
Quincy Adams, leading a large Northern element, took 
strong ground against the constitutionality of acquiring 
foreign territory, and especially of the admission into 
the Union of a State formed from such territory. And 
he went so far as to say that such an act would be such 
a flagrant violation of the Constitution as to morally 
release any State from its obligation to the Union, and 
might require some of the States to separate from the 
Union, either peaceably or forcibly. 

This same doctrine was again advanced in 1844! when 



OF THE UNITED STATES 193 

it was proposed to admit Texas into the Union. When 
that matter was under consideration in Congress the 
legislature of Massachusetts, under the lead of Charles 
Francis Adams, passed resolutions denying the power of 
Congress to incorporate foreign territory as a State in 
the Union, and declaring that such project, if persisted 
in, might lead to a dissolution of the Union. Not only 
did these resolutions apparently assert the right of sepa- 
ration, but they contained language so full of heresy 
that one might think they had been dictated by Calhoun. 
They spoke of the Constitution as a compact, and the 
duty of the State to observe its terms as she understood 
it. In fact, one would naturally look for such a docu- 
ment, if at any point within the United States, in the 
archives of South Carolina rather than in those of 
Massachusetts. Nothing came of either of these objec- 
tions to the admission of Louisiana and Texas, and the 
matter is mentioned here to show how widespread was 
the idea of separation, or the power on the part of a 
State to dissolve the Union. 

In response to an invitation from a convention held in 
Mississippi in October, in 1849, to the Southern States 
to meet and take action which would put a stop to North- 
ern aggressions on Southern rights, there assembled in 
Nashville, in June, 1850, a convention composed of dele- 
gates from most of the Southern States. While noth- 
ing was said in the call which looked def,nitely toward 
dissolution, still, the Mississippi convention did propose 
that if the Nashville convention failed in its purpose 



194 CONSTITUTIONAL HISTORY 

the Southern States, in their sovereign capacity, should 
provide a remedy. 

After the passage of the compromise measures in Con- 
gress in the summer of 1850 the Nashville convention 
resumed its sitting and sent forth a declaration to the 
effect that when any State felt the circumstances justi- 
fied such a course it was authorized to resume the powers 
it had on becoming a member of the Union, conferred 
on the general Government. It borders on the ridiculous 
to hear States formed out of territory purchased by 
the general Government from a foreign country, which 
never had any political existence or government except 
such as was given them by Congress, talk about powers 
which they had conferred on the general Government, 
and their right to resume such powers. 

In May, 1851, the Southern Rights Association of 
South Carolina held a convention in Charleston which 
declared the State would take such action as its honor 
and its interest demanded. Following this the legisla- 
ture passed a law providing for appointment of dele- 
gates to a Congress of the Southern States which was 
expected to initiate a secession movement among all the 
slave States. But when the election in South Carolina 
for delegates to this Congress took place, to the sur- 
prise of all the politicians, a very large majority of the 
delegates were opposed to secession, and nothing resulted 
from this move. 

From this time until its actual occurrence threats of 
secession by the Southern leaders accompanied nearly 



OF THE UNITED STATES 195 

every important political movement. The passage of 
the Kansas-Nebraska bill, in 1854, was the commence- 
ment of a new struggle between freedom and slavery for 
dominion in the territories. During the controversy 
following this act the claims of slavery were pushed to 
a limit which they had never before approached. Not 
only the right of the slave-holder to take his slaves into 
any territory of the United States, and there hold them 
as owners held other property, was now asserted, but the 
further claim was put forth that if the territorial leg- 
islature failed to give him adequate protection it was 
the duty of the general Government to come to his re- 
lief and furnish him as full protection against, and re- 
lief for, interference with his slaves as was accorded to 
owners of any kind of property. 

This claim of the Southern politicians was almost in- 
variably accompanied by a threat that if their demands 
were not acceded to they would seek protection in a 
dissolution of the Union. The Kansas struggle was 
memorable not only by reason of the physical conflict 
that took place on her soil, but no less because of the 
political discussion to which it gave rise, both within 
the halls of Congress and throughout the whole extent 
of the country. In no previous discussion had the de- 
mands of slavery been so boldly and vigorously com- 
bated and so successfully resisted. The sophistry in 
the argument and the untenable conclusions reached in 
the majority opinion of the judges of the United States 
Supreme Court in announcing the decision of that tribu- 



196 CONSTITUTIONAL HISTORY 

nal in the Dred Scott case were held up to the public gaze 
by the advocates of freedom with as little concern as they 
felt in tearing to shreds the falsehoods embodied in the 
popular sovereignty doctrine through which it was sup- 
posed slavery might be successfully introduced into Kan- 
sas. The spirit of the free North had broken the shackles 
in which it had so long been held in subjection to the slave- 
holding South. In 1856 this independent spirit on the 
part of the advocates of freedom was, for the first time 
in our national history, manifested in the organization 
of the National Republican party, which explicitly de- 
clared in favor of restraining slave territory within its 
present limits. 

In the continuance of the contest between these op- 
posing forces which took place during the next four 
years little attention was paid by their opponents to the 
threats of Southern leaders that a failure on the part 
of the nation to recognize their demands would inevita- 
bly lead to a dissolution of the Union. No doubt these 
threats were often made for the purpose of influencing 
political action, and to secure results which could not 
otherwise be attained. But that the South realized its 
weakness more clearly than it had ever been compre- 
hended by the North seems certain. The South saw that 
to circumscribe slavery and confine it to the limits it then 
occupied was to decree its gradual extinction. Hence, 
with the champions of slavery it was a life and death 
struggle for more slave territory. And, if this could 
not be secured in the Union, their only resource was to 



OF THE UNITED STATES 197 

seek for it outside. Therefore, what was by many 
throughout the country taken as an idle boast was, by 
the Southern leaders who made it, meant in the most 
solemn earnest, and may be said to have been the neces- 
sary conclusion to which they were forced unless they 
were content to look for the final extinction of slavery. 
The conflict of opinion respecting slavery, and the 
claims of slavery on the Government, which had been 
growing in intensity for a number of years, had, to a 
great extent, divided the country into two sections, and 
had become the dominant question of politics. In the 
spring of 1860 Jefferson Davis introduced into the 
United States Senate a series of resolutions setting forth 
some of the demands of the South. It was evident that 
this action was intended to give shape to the course to 
be pursued by at least one political convention which was 
soon to convene, and to influence the result of the ensu- 
ing Presidential campaign. Every movement taken by 
the Democratic politicians made it more probable that 
the conflict of which I have spoken had so gotten hold of 
their party that the division therein was likely to be- 
come as serious as was that in the country at large. The 
Democratic convention met in Charleston the latter part 
of April, 1860. The one question at issue was the decla- 
ration which it would put forth respecting the claims of 
slavery upon the general Government. For the first 
time in the history of the party the Northern Democrats 
refused to accede to Southern demands. As a result the 
party was split, and two Democratic tickets were subse- 



198 CONSTITUTIONAL HISTORY 

quently put in the field. From this time it was practi- 
cally determined that neither Democratic candidate could 
secure a majority of the Presidential electors. Either 
the Republican candidate would be elected or the election 
would be thrown into the House of Representatives. The 
result was likely to be reached which the South had 
declared would dissolve the Union. 

No statement was more frequently made during the 
campaign of 1860 than that by all the Democratic ora- 
tors of the South that, if the Republican candidate was 
elected President, the Southern States would secede from 
the Union, and, perhaps, no other statement was taken 
by the people of the North less seriously. And yet the 
ballots were scarcely counted until this threat began to 
be put into execution. 

Of all the States in the Union South Carolina was the 
only one whose Presidential electors were chosen by the 
legislature instead of by a direct vote of the people. As, 
under the law, the electors had to be chosen on the same 
day throughout the Union it became necessary for the 
Governor of South Carolina to convene the legislature 
in special session to select her electors on November 6th. 
In his message the Governor requested the legislature to 
remain in session until after the result of the election 
was known in order that they might take the necessary 
steps to secure their rights in case the Republican can- 
didate was elected President. 

On the day following the Presidental election steps 
were taken in the legislature which resulted in calling a 



or THE UNITED STATES 199 

convention to convene on December 17, 1860, and decide 
whether or not South CaroHna should secede from the 
Union. At the same time most of the national officers 
within the State tendered their resignations, or declared 
their intention so to do, and her United States Senators 
did the same. I need not follow the history of these 
proceedings. In reference to the determination of the 
South to force her views on the North, or else to dissolve 
the Union, evidently the North had been mistaken. The 
movement in South Carolina was not an idle bluff, but 
was the expression of an earnest purpose. The example 
set by South Carolina was soon followed by other of the 
cotton States, and before the close of President 
Buchanan's administration seven States had proved, so 
far as was in their power to do so, that secession was 
possible under the United States Constitution, and had 
actually organized a new government on the confederate 
instead of the national idea. 

Unless one refuses to give credit to the good faith 
of what is said and done in a whole section of country 
he is bound to concede that the great body of the people 
of the Southern States had brought themselves to be- 
lieve fully in two propositions — first, that slavery was 
a divine institution, and therefore for the best interest 
of both master and slave; and, second, that the States 
were sovereign, and therefore the citizen's first allegiance 
was due the State; that only in a secondary sense and a 
subordinate degree did he owe allegiance to the general 
Government. That either of these propositions should 



200 CONSTITUTIONAL HISTORY 

have been accepted as true by any large number of peo- 
ple in a free and enlightened State, indeed, seems almost 
incredible; but to doubt the fact that such belief was 
general is to fail to grasp the reason for the strength 
and endurance of the Southern confederacy. 

No one can read the history of the secession move- 
ment in this country, as a substantial danger to the 
Government, and have any doubt that its source is to be 
found alone in slavery. That from the assembling of 
the constitutional convention in Philadelphia there was 
an opposition to the organization of a National Govern- 
ment is indisputable. That, to a certain degree, this 
sentiment continued to prevail for many years after the 
organization of the Government is abundantly shown by 
history. That this feeling was entertained in the North 
as well as in the South is also true. That this opposi- 
tion found expression in words on more than one occasion 
is not to be denied. But this sentiment on the part of a 
few people scattered over the nation was in no sense the 
origin of the idea of secession. The doctrine of secession 
was not found in the Constitution, nor was it deduced 
from it, but was an invention studied out by ingenious 
politicians to meet what was felt to be a pressing need. 

Slavery was sectional and not national. Its existence 
was recognized without being sanctioned in the Consti- 
tution. The system was not only debasing in morals 
but was a blight on industry and progress. It could 
exist only by virtue of positive law. The slave-masters 
saw the public domain appropriated by settlers impelled 



OF THE UNITED STATES 201 

by the spirit of freedom, with whom the institution of 
slavery could find no favor. They saw themselves likely 
to be cut off from the outside world, and be surrounded 
by free labor and free institutions. They put forth every 
effort which ingenuity could devise, and which affrontcry 
could dictate, to bring the National Government to a 
recognition of slavery as a legitimate institution in all 
national territory, and as entitled to all the protection 
belonging to the rights of property. Their efforts 
proved unavailing. 

In proportion as the slavocracy saw their endeavors 
to bring the National Government to a full recognition 
of their claims fail of realization did they endeavor to 
find a way by which they might escape the doom they 
saw awaiting them. The theory of State sovereignty, 
invented by those who, in the early days of the republic, 
were opposed to the doctrine of nationality, and of which 
Calhoun had been the most eminent and persistent ad- 
vocate, now became the prevailing belief. On this theory 
of States' rights was engrafted the more modern doctrine 
of secession, and the struggle from 1860 to 1865 was 
the result. 

Neither State sovereignty, as claimed by the Southern 
people, nor secession, as invented and advocated by them, 
found any countenance in the Constitution. They were 
both political heresies, purely the invention of necessity, 
brought forth to give countenance and strength to a 
plan for making sectional claims paramount to national 
rights. Their originators and promulgators submitted 



202 CONSTITUTIONAL HISTORY 

the correctness of the doctrine which they embodied to 
the decision of a tribunal which recognized no appeal. 
The decision against them was so marked and conclusive 
that we can hardly conceive of these issues arising again 
to array sections of the country against each other or to 
threaten the nation's peace. 

THE government's RIGHT OF SELF-PRESERVATION 

Threats to break up the Union were of long standing 
and frequently made, but seldom has there been any di- 
rect attempt to put them into operation and to forcibly 
assail the life of the nation. The nullification ordinance 
of South Carolina, in 1832, practically amounted to this, 
but the firai hand of Jackson arrested the conspiracy 
almost in its inception, and some concessions made by 
Congress helped to soothe the wounded feelings of the 
proud nullifiers when they found it necessary to acknowl- 
edge the authority of the Government, so that open op- 
position to the Government ceased and those who had 
attempted a rebellion were measurably satisfied with the 
conditions of affairs under the Government. 

For a decade prior to 1860 the air was full of the 
claims of State sovereignty, of secession, of the inabihty 
of the Government to coerce a sovereign State — of al- 
most every conceivable claim which looked toward a dis- 
solution of the Union. The people in general did not 
take most of this talk as seriously intended, but rather 
looked upon it as a sort of bluff by means of which those 



OF THE UNITED STATES 203 

who indulged in it hoped to extort from the Government 
the most favorable action which it was possible to obtain 
in favor of Southern measures. 

Even after the Presidential election in 1860 most peo- 
ple were slow to believe that any serious trouble awaited 
the Government. But those who took this view were 
probably guided by their desires rather than by their 
judgment. When words were followed by acts it was 
certainly time for the people to seriously consider exist- 
ing facts. 

Prior to the meeting of Congress in 1860 President 
Buchanan had asked and received the views of his 
Attorney-General concerning the President's duty in 
view of the threatened crisis. What course the President 
would have felt called upon to pursue independently of 
the opinion of the Attorney-General, or had that opinion 
been in favor of the exercise of force, if need be, we may 
not, perhaps, know with certainty. But, in accordance 
with that opinion, both his acts and his words were uni- 
formly in consonance with the theory that the Govern- 
ment had no power to protect its own life by the use of 
force. It is true the President denied the right of seces- 
sion, and said that it was nothing less than revolution. 
He argued that the Government might use its army as a 
posse comitatus in aid of the civil power to enforce its 
orders. But this position of the President was abso- 
lutely ridiculous. In his view the Government might 
suppress a small revolt that opposed the execution of 
process by the United States Marshal, but when the re- 



204 CONSTITUTIONAL HISTORY 

volt had reached the proportions that frightened both 
judge and marshal into resigning, had taken possession 
of the Government building, and had destroyed all sem- 
blance of the exercise of local authority by the Govern- 
ment officers, the National Government was then without 
rightful authority to use force to execute the national 
will. 

In his last annual message, at the opening of the last 
session of the Thirty-sixth Congress, in December, I860, 
President Buchanan said: "The course of events is so 
rapidly hastening forward that the emergency may soon 
arise when you may be called on to decide the momentous 
question whether you possess the power, by force of 
arms, to compel a State to remain in the Union. I 
should feel myself recreant to my duty were I not to 
express my opinion on this important subject. 

"The question fairly stated is. Has the Constitution 
delegated to Congress the power to coerce a State into 
submission which attempts to withdraw, or has actually 
withdrawn, from the confederacy.'' If answered in the 
affirmative it must be on the principle that the power 
has been conferred on Congress to declare and make war 
against a State. After much serious reflection I have 
arrived at the conclusion that no such power has been 
delegated to Congress, or to any other department of the 
Federal Government." 

Did anyone, on any other occasion, ever hear from the 
head of any government such a pusillanimous confession ? 
Buchanan had already, in this same message, asserted 



or THE UNITED STATES 205 

that secession found no countenance in the Constitution, 
and that an instrument conceding such a right would be 
but a rope of sand. But what shall we say of a Consti- 
tution which withholds from the Government which it 
establishes the authority to employ the force under its 
control for the suppression of opposition which is con- 
fessedly illegally put forth for the destruction of the 
national life? Much better that the Constitution should 
concede the right of secession than to deny the right but 
withhold from the Government the authority to sup- 
press it. 

Buchanan attempted to support his opinion by a ref- 
erence to the debates in the convention which framed the 
Constitution. In my judgment these debates, when care- 
fully considered in connection with the various propo- 
sitions which were before the convention, do not, by 
any means, bear out the theory advanced by the Presi- 
dent or justify the conclusion he deduced from them. 
But I shall not occupy space in referring to these dis- 
cussions ; anyone interested can study them in Madison's 
Notes, or Elliott's Debates, or in other works where 
they have been given. Even if the proceedings did show 
that such a view was entertained by the convention, or 
by some of its members, as I have said in other parts of 
this work, I should not consider it as of any great 
moment in determining what the correct view of the 
Constitution is. What the people adopted, and what 
we are to construe, is what the convention put into the 
Constitution, and not what its members said about it. 



206 CONSTITUTIONAL HISTORY 

Each member of that convention, and every citizen who 
is under the jurisdiction of the Government, was and is 
bound to know the meaning of the language used in the 
fundamental charter of government in which are ex- 
pressed his rights and duties. Only in the event of great 
doubt as to the meaning of the language used would the 
President or anyone else be justified in leaving the Con- 
stitution itself and appealing to the opinion of some 
member of the convention when seeking for its true 
meaning and its correct interpretation. 

There are many reasons why President Buchanan 
should have come to a different conclusion respecting the 
powers of the Government from the one which he com- 
municated to Congress. In the very organization of an 
independent State there is the implied right for the use 
of all force necessary for its preservation. Were the 
Constitution silent on the subject the right would in- 
here in the Government by virtue of its organization. 
This right being in the Government, the constitutional 
provision that Congress should have authority to make 
all laws necessary and proper for carrying into execu- 
tion all powers vested by the Constitution in the Gov- 
ernment, or in any department or officer thereof, would 
seem to be broad enough to authorize the passage of a 
law directing the employment of its army in suppress- 
ing revolts against the powers of the Government. 
Again, the constitutional oath required of the President 
that he will "preserve . . . the Constitution of the 
United States," if it is to be given any force, should be 



OF THE UNITED STATES 207 

held to carry with it the right and the duty to put forth 
some exertion to restrain and suppress organized bodies 
of men who are bent on the destruction of the Constitu- 
tion and the Government. 

But the Constitution is not silent on the question of 
defending the life and vitality of the nation. Congress 
is given authority "To provide for calling forth the 
militia to execute the laws of the Union, suppress in- 
surrection, and repel invasion." The laws of the Union 
provide for the organization and maintenance of a 
national judiciary which is to sit and administer justice 
in every State, for the carrying of the mails through- 
out all the States, for the collection of customs and taxes 
all over the country, for the purchase of sites and the 
erection and maintenance of Government buildings 
thereon wherever the same are needed, as well as putting 
into operation many other Government agencies. Se- 
cession means the destruction of these institutions as a 
feature of governmental machinery for the country, and 
the impeding or the prohibition of the operation of 
these laws in the State where secession is proclaimed. 
If the power to provide and use an army to execute the 
laws of the Union does not cover the cases I have sug- 
gested, of what force is the said constitutional provision .'* 
And yet President Buchanan, "after much serious reflec- 
tion" could find no authority in the Constitution for the 
forcible enforcement of law. 

Nearly forty years before President Buchanan sent 
this message to Congress, Chief Justice Marshall, in an- 



208 CONSTITUTIONAL HISTORY 

nouncing the unanimous opinion of the Supreme Court 
of the United States, in the case of Cohens vs. Virginia, 
had used this language: "It is true that whenever 
hostility to the existing system shall become universal it 
will be also Irresistible. The people made the Consti- 
tution, and the people can unmake it. It Is the creation 
of their own will, and lives only by their will. But this 
supreme and irresistible power to make or unmake re- 
sides only In the whole body of the people, not in any 
subdivision of them. The attempt of any of the parts 
to exercise It is usurpation, and ought to be repelled by 
those to whom the people have delegated their power of 
repelling It. The acknowledged inability of the Gov- 
ernment, then, to sustain itself against the public will, 
and, by force or otherwise, to control the whole nation, 
is no sound argument in support of its constitutional 
inability to preserve itself against a section of the nation 
acting in opposition to the general will. . . . The 
framers of the Constitution were. Indeed, unable to make 
any provisions which should protect that instrument 
against a general combination of the States or of the 
people, for Its destruction ; and, conscious of this inabil- 
ity, they have not made the attempt. But they were 
able to provide against the operation of measures 
adopted In any one State, whose tendency might be to 
arrest the execution of the laws, and this it was the part 
of true wisdom to attempt. We think they have at- 
tempted it." 

I do not see how the situation confronting President 



OF THE UNITED STATES 209 

Buchanan In the closing months of his administration 
could be more correctly characterized than by applying 
the language of the learned Chief Justice which I have 
quoted. If, In place of what the President put In his mes- 
sage to Congress, he had quoted this language, or used 
other of similar Import, and then had made his actions 
correspond to such declaration, his reputation would 
have suffered less, his efforts would be held In more grate- 
ful remembrance, and the horrors of a long and bloody 
civil war might have been avoided. The President 
could at least have thrown on Congress the responsibility 
of granting or refusing him the authority to use the 
whole force of the nation for the preservation of Its life. 
He chose to advise Congress that they had no such right, 
and on him must rest the responsibility for the Govern- 
ment's inactivity in the most critical point In its history. 
The constitutional right of the Government to use 
force "to execute the laws of the Union, suppress Insur- 
rections and repel Invasions," clear to one who has no 
thought but to read the Constitution for Its meaning, 
with no desire to find an excuse for law-breakers, even 
before Lincoln's Inauguration, was rendered Irrefutable 
by the logic of events which succeeded his induction Into 
office. It is to be hoped that the occasion for the as- 
sertion of this doctrine will never again arise, but If it 
does the non-coercion theory will hardly find anyone so 
self-deceived as to advocate Its claim. The nation has 
written In blood its condemnation of secession, and aslo 
its constitutional right to protect Its own life. This in- 



210 CONSTITUTIONAL HISTORY 

terpretatlon of the Constitution, vindicated at such an 
enormous cost of treasure and blood, will never be re- 
versed, and probably will never again be questioned. 

CONSTITUTIONAL CHANGES AS A RESULT OF 
THE CIVIL WAR 

That the Civil War inaugurated by the Southern 
States immediately on the close of the Presidential cam- 
paign of 1860 was directly traceable to slavery there 
can be no doubt. It was slavery which consolidated the 
South against the Government, and it was the friends, 
or at least the excusers, of slavery which caused most of 
the criticism of the Government in the North during 
the progress of the war. Almost of necessity an insti- 
tution so intimately associated with such an important 
event was bound to be greatly affected, either favorably 
or disastrously, by the result of the war. 

The first national act in any way looking toward giv- 
ing freedom to slaves on account of the rebellion was a 
section in the confiscation law passed at the special ses- 
sion of Congress which convened on July 4, 1861, which 
provided that when slaves were employed in the rebel 
army, or in forts or other places of defence, for any 
purpose whatever, their owner should forfeit all claim 
to them, and, if such slaves escaped, they could not be 
recovered by their owner. 

Early in the war General Butler declared that all 
negroes escaping from the rebel army and coming within 



OF THE UNITED STATES 211 

the Union lines were contrabands of war and should not 
be delivered up to their former owners. 

Soon after the assembling of Congress in December, 

1861, a bill was introduced, which became a law in April, 

1862, abolishing slavery in the District of Columbia. 
In June, 1862, a law was passed prohibiting slavery in 
any territory of the United States. 

In July, 1862, Congress passed a law to suppress in- 
surrection, and for other purposes, which provided as a 
part of the punishment for treason that upon the con- 
viction of anyone of treason all his slaves, if he had any, 
should be declared free. And, in the same act, the Presi- 
dent was authorized to use negroes in suppressing the 
rebellion. 

On September 22, 1862, President Lincoln issued his 
preliminary proclamation of emancipation, in which he 
warned those in rebellion that in any State or district 
which should be in rebellion on January 1, 1863, he 
should declare all slaves free. And on January 1, 1863, 
the President issued his proclamation announcing eman- 
cipation to all slaves in the rebel States. 

Many believed that the emancipation of the slaves in 
the rebel States through the President's proclamation 
did not rest on a sufficiently strong foundation, and, be- 
sides that, it did not cover all the slave territory in the 
Union. Consequently, it was determined to reach the 
evil through a constitutional amendment. Such an arti- 
cle was first proposed in Congress in January, 1864. It 
soon passed the Senate but failed of the necessary two- 



212 CONSTITUTIONAL HISTORY 

thirds majority in the House. A reconsideration was 
thereafter moved and carried during the next session, 
a two-thirds vote at this time being secured, and in Feb- 
ruary, 1865, the thirteenth amendment was submitted 
to the States for ratification. Soon after the meeting 
of Congress the following December the amendment had 
been ratified by three-fourths of the States and pro- 
claimed a part of the national Constitution. 

We have now reached a period in our constitutional 
history which is full of perplexing questions, the solu- 
tion of which is surrounded with many difficulties. In 
judging of men and of measures one should use forbear- 
ance and be willing to consider more than the mere 
matter in discussion. We had just passed through a 
great civil war in which all the energies of the nation 
had been taxed for its own preservation. A great work 
still remained to be done to bring the revolted people, 
and the local governments that must be carried on by 
them, back into harmonious working relations with the 
Union. 

In considering the constitutional history of this period 
one must not overlook the situation of the majority 
party in Congress any more than the condition of the 
country. The Vice-President had succeeded to the Presi- 
dency. He was a man of very different temper from 
the one whose place he had taken. He had, probably 
honestly, come to believe that the safety and welfare of 
the nation were largely in his keeping. He strongly 
mistrusted either the ability or the patriotism of Con- 



OF THE UNITED STATES 213 

gress. Through a series of events which I do not deem 
it necessary to relate, the President broke with the party 
which had elected him and depended on the opposition 
party to enable him to carry out his own policy. 

President Johnson, claiming to be following Mr. Lin- 
coln's idea and to be carrying out the policy which Mr. 
Lincoln had inaugurated and had intended to pursue, 
held to the idea of the indestructibility of the State. 
Early in his administration President Johnson proceeded 
to reorganize the governments in the so-called rebel 
States, apparently without the remotest idea that Con- 
gress had anything whatever to do with the subject. 
Before the meeting of Congress in 1865 conventions had 
been held in most of the seceded States, changes had 
been made in the old State constitutions. State officers 
had been elected, and Senators and Representatives had 
been chosen and were now ready to demand their places 
as legal and authorized members of the two houses of 
Congress. 

On its assembling in annual session these matters were, 
by the President, reported to Congress as accomplished 
facts. The policy which the President had pursued did 
not meet the approval of Congress. In its view a State 
was not an indestructible unit. Congress was of the 
opinion that the seceded States had, by their own act, 
destroyed their State governments and forfeited all 
rights they had once enjoyed. It believed that the sup- 
pression of the rebellion had left these States as con- 
quered territory belonging to the United States. Or, 



214 CONSTITUTIONAL HISTORY 

if this position were a too strong statement of the case, 
still, it asserted that these once States of the Union had, 
by their act of rebellion, placed themselves under the 
control of Congress for the establishment of such gov- 
ernment as might be just. The claim of Congress was 
that the reorganization of government in the late se- 
ceded States was a legislative and not an executive act. 
While it seems probable that, up to the time of his 
death, Mr. Lincoln had no fixed, definite, and clearly 
defined plan for the reconstruction of the seceded States, 
that he was not satisfied that any one plan would answer, 
but that several might be required, according to cir- 
cumstances, that he did not feel bound by what he had 
done in Louisiana and Alabama to pursue the same 
course elsewhere, still, I think we may safely assume from 
all that he had done and said, that he regarded the 
States then or lately in rebellion as existing political 
organizations; that he probably, though perhaps some- 
what unconsciously, and without having carefully 
thought the subject out on principle, held the doctrine 
of indestructible statehood; that he looked upon recon- 
struction as an act properly falling within executive 
cognizance, and not as a political measure under the 
exclusive jurisdiction of the legislative department of 
government. I have thus stated what I believe to have 
been Mr. Lincoln's position on this controverted question, 
tentatively assumed rather than firmly held, in order 
to give Mr. Johnson all the benefit that may in any way 
be fairly claimed for him as following the line of policy 



OF THE UNITED STATES 215 

which Mr. Lincoln had indicated. It must not be for- 
gotten that during Mr. Lincoln's life these questions had 
scarcely been raised and had not received that thorough 
discussion which was given to them when Congress took 
hold of the matter of reconstruction. There is no rea- 
son to believe that, had he lived, Mr. Lincoln would have 
been found in antagonism with Congress on the subject 
of reconstruction. 

With the divergent views, which I have indicated, held 
by President Johnson and Congress there would, almost 
of necessity, be trouble over the matter of reconstruction, 
even though each party should be disposed to be mind- 
ful of the other's rights. But when, instead of a con- 
ciliatory spirit, each party approached the subject with 
something of a determination to carry out its own ideas 
regardless of those entertained by the other, no one 
could look for anything less than a serious conflict. 

Under the President's policy the seceded States were 
to be restored to their old relation to the Union on the 
theory that they had always been States in the Union, 
whose active relation therein had been temporarily sus- 
pended on account of certain acts of their citizens. 
Those acts having ceased, the States were now, as the 
President maintained, entitled to all their old rights and 
privileges. 

The congressional plan, on the other hand, proposed 
a treatment of the people in these several districts, for- 
merly forming States in the Union, as having forfeited 
their rights and now being under the control of Con- 



216 CONSTITUTIONAL HISTORY 

gress, and, with no right of statehood until that should 
be conferred on them by Congress; they must, as a con- 
sequence, accept such local government as Congress 
might choose to confer upon them. Involved in this con- 
troversy, of course, was the new and important question 
of what rights and privileges should be guaranteed to 
the freedmen. 

The contest between the President, supported by the 
opposition element which I have suggested, on the one 
side, and the majority party in Congress on the other 
side, over the policy to be adopted and pursued for a 
reconstruction of the seceded States, and the defining 
and enforcing of the rights of the freedmen, now be- 
came serious, and proceeded on two boldly drawn and 
diametrically opposed lines of policy, and widely differ- 
ing interpretations of the Constitution. 

The congressional plan was, as I think, dictated by 
true constitutional construction, correct political princi- 
ples, and sound political morality. It rightly looked 
upon the freedmen, in a large measure, as wards of the 
Government, whose rights were to be protected by 
national authority, by virtue of the thirteenth constitu- 
tional amendment, against the aggressions of their 
former masters. This consideration of national obli- 
gation was practically excluded from the President's 
plan. 

Probably no one, at this day, who is at all informed, 
will attempt to justify either the President or Congress 
in all the acts by them respectively performed during the 



OF THE UNITED STATES 217 

period of reconstruction. In the first place the question 
confronting the Government was so different from any 
that had ever before arisen in our history that it might 
well be expected that wise and patriotic men would differ 
in their views of how it should be treated. The consti- 
tutional question was a delicate one. I have no doubt 
that the President's theory of the rights of the seceded 
States was absolutely wrong, and that, in the main, the 
congressional view was correct. But that, on more than 
one occasion. Congress, in carrying out its policy, al- 
lowed itself to be controlled, to a certain extent, by a 
feeling of resentment toward the President, and a deter- 
mination, at all events, to circumvent his plan, seems be- 
yond question. That some of the bills passed by Con- 
gress over the President's veto contained provisions which 
were unconstitutional, and many more that were unwise, 
no one will to-day dispute. Many of these acts which 
we cannot attempt to justify we may, perhaps, excuse 
on the ground that excitement and passion ran high, 
that the safety of the country was in peril, that the rights 
of the freedmen were seriously threatened, and that, 
under the circumstances, a somewhat liberal discretion 
must be accorded to a legislative body in framing its 
measures to meet these demands. Some of these con- 
siderations must also be kept in mind when we are pass- 
ing on the acts of the President. But when we have 
made all the concessions for each party which fair deal- 
ing requires at our hands we cannot point to the recon- 
struction acts as models on which we would want any 



218 CONSTITUTION AI. HISTORY 

subsequent work of a like kind to be carried out should 
we ever again be subject to such great national calamity. 
Perhaps as wise measures were framed, and as good re- 
sults reached as we could expect when the whole subject 
is looked at fairly ; still, the fact remains that great mis- 
takes were committed. The President was not as bad as 
his antagonists represented him to be, but his plan of 
reconstruction is indefensible, and one might almost say 
inexcusable, from a constitutional standpoint. Con- 
gress was, on the whole, patriotic, and based its action 
on a theory which, when properly pursued, was in ac- 
cord with the correct constitutional principles, but in 
carrying out its policy it committed many mistakes, 
some of which were hardly to be excused. All I need 
here add is that the constitutional history of this period 
must be looked at with much indulgence, with many 
misgivings, and its results must be scanned with great 
discrimination. 

The contest which arose in Congress over the recon- 
struction of the seceded States, and, as an incident 
therein, the contest of which I have just spoken between 
Congress and the President as to which policy should 
be pursued, led to a further amendment of the Consti- 
tution. 

Early in 1866 Congress had under consideration, and 
finally passed, two important measures, one known as the 
Freedmen's Bureau Bill, and the other the Civil Rights 
Bill. The provisions of these bills certainly contem- 
plated an extension of national jurisdiction, to an extent 



OF THE UNITED STATES 219 

never before thought of, Into matters which had there- 
tofore rested entirely under State control. The rela- 
tions between the President and Congress, which before 
this had been somewhat cool, now became excessively 
strained. The President's veto of the Freedmen's Bu- 
reau Bill embittered the friends of that measure, but his 
ill-advised speech to a crowd who called upon him to 
congratulate him on the event was far more exasperat- 
ing. 

The Civil Rights Bill, which was passed over the 
President's veto, was the first national measure defining 
and enforcing civil rights. The rebellion had made 
clear that for the safety of our institutions and the pres- 
ervation of personal liberty greater power must be con- 
ferred on and exercised by the National Government. 
The adoption of the thirteenth amendment was a great 
start in this direction, and now Congress proposed to 
follow it up by a still further broadening of the field 
of national jurisdiction. 

Several of the bodies acting as legislatures of the so- 
called reconstructed States, formed and recognized by 
the President, had passed laws intended to deprive the 
freedmen of all substantial benefits of freedom, and to 
again reduce them to a condition of vassalage. I shall 
not give any analysis of the civil rights bill, but it for 
the first time defined citizenship^ and made provision for 
the protection of the rights of citizens, and especially 
of the freedmen. This was a vast stride in advance of 
the old theory of State and national relationship 



220 CONSTITUTIONAL HISTORY 

respecting personal rights. If the provisions of this bill 
had been acquiesced in by the President and the South- 
em leaders perhaps no further amendments of the Con- 
stitution would have been soon proposed. 

But all of this legislation was opposed by the Presi- 
dent, and its constitutionality was denied by the South 
and the opposition party in Congress. This naturally 
led Congress to plan a safer and more enduring measure 
to secure the end it was seeking. It was now still more 
apparent than it had been at any previous time that 
civil liberty should be defined and made secure under a 
national conception of rights rather than be left to be 
dealt with by the several States under such local views 
as might prevail in different parts of the country. 
Naturally, too, the scope of the measure broadened as 
it was discussed, and so the idea expressed in the civil 
rights bill was greatly enlarged when, it took form in a 
constitutional amendment. 

In June, 1866, the fourteenth amendment passed 
Congress and was submitted to the States for their rati- 
fication. The discussion of this policy, both in and out 
of Congress, aroused the whole country and demon- 
strated the necessity for embodying this truly national 
measure in the Constitution. It was not till July, 1868, 
that three-fourths of the States had given it their ap- 
proval and thereby made it a part of our charter of 
rights. Perhaps no other addition has been made to our 
Constitution since its first adoption as it came from the 
hands of the convention which framed it so far reaching 



OF THE UNITED STATES 221 

and important in its character as the fourteenth amend- 
ment. Even the thirteenth amendment, which abohshed 
slavery, can hardly be said to equal it in importance. 
For, at the time of the adoption of the thirteenth amend- 
ment the slavery question was in such a condition in this 
country that it was scarcely possible for it to again 
assume anything like national proportions. The aboli- 
tion of slavery in the seceded States by the President's 
proclamation had been so far effective that it could not 
be effectively revived, with the spirit of the nineteenth 
century, not only in America but throughout Europe, 
so strongly arrayed against it. And with the institution 
dead in those States which had been its stronghold it 
could not long sundve in those States where there had 
always been a sentiment against its expediency if not its 
morality. But without the fourteenth amendment, the 
standing and the civil rights of more people than the 
freedmen must ever have been a question subject to agi- 
tation, in which local sentiment would play a conspicu- 
ous part. 

The ratification of both the fourteenth and the fif- 
teenth constitutional amendments was, to some extent, 
secured by compulsion ; or rather the action of certain 
States ratifying said amendments was obtained because 
they were given to understand that until their affirma- 
tive action thereon was had they would not be admitted 
to representation in Congress. This fact has been used 
by some as an argument in favor of the theory that the 
States were always in the Union, and were, as soon as 



222 CONSTITUTIONAL HISTORY 

secession ceased, entitled to representation in Congress. 
But this conclusion by no means follows from the con- 
gressional requirement. That, at that time, it would have 
been unwise to have taken the vote of three-fourths of 
the loyal States as sufficient to have made the ratifica- 
tion of a constitutional amendment binding most persons 
will certainly accept. The binding force of the Consti- 
tution is to be accepted by all the people. At that time 
many of the people did not believe that when rebellion 
has actually destroyed all constitutional government in a 
State as found under our National Constitution and has 
turned all the forces of the State against those of the 
nation, it has so far ceased to be a State in the Union 
that it has no right to representation in Congress, that 
it may not take part in selecting a President, and need 
not be taken into account in determining the number of 
States necessary to ratify a proposed constitutional 
amendment in order to make it binding. While I think 
a State in the condition I have described is no more to be 
taken into consideration for any of the purposes I have 
just mentioned than is one of our territories, still, I 
think it the part of wisdom, for the purpose of satisfy- 
ing the judgment of all the people, to secure the ratifica- 
tion of the disorganized States as well as the others ; or, 
rather, to count such States along with the others, and 
secure the consent of three-fourths of the whole number 
•to a proposed constitutional amendment. I think this 
should have been done, as it was, in reference to the 
thirteenth, fourteenth, and fifteenth amendments, not 



OF THE UNITED STATES 223 

because it was necessary under the Constitution, but 
rather for the purpose of satisfying doubtful judg- 
ments. If the seceded States were to be counted in 
arriving at the number required for a three-fourths ma- 
jority then, of course, their ratification was sufficient, 
and was as binding as that of any other State. But if 
they were not to be counted in arriving at such determi- 
nation then their act of ratification should not be con- 
sidered and there should be a ratification of three-fourths 
of all the other States in order to make an amendment a 
part of the Constitution. All of these three amendments 
were properly ratified whichever view was to be taken 
as correct, and whichever method of computation should 
be followed. 

In the ratification of the fourteenth amendment a 
constitutional question was settled, so far as the action 
of the legislative and the executive departments of the 
Government can settle it; this question relates to the 
authority of a State to reverse its action and withdraw 
its consent when it has once ratified a proposed amend- 
ment. New Jersey and Ohio, after ratifying the four- 
teenth amendment, by vote of their legislatures at- 
tempted to withdraw their ratification. But both the 
executive and legislative departments of the Government 
counted them among the ratifying States. And this 
was undoubtedly a correct constitutional construction. 
The action of the States in ratifying a proposed amend- 
ment is not an agreement among themselves which may 
be withdrawn at any time. But it is an action of a con- 



224 CONSTITUTIONAL HISTORY 

stituent part of the Government, authorized by the Con- 
stitution, and when once given and officially reported is 
beyond the power of the State to recall or modify. 

The question of a national restriction on the power of 
a State to limit the right of suffrage sprang wholly 
from the results of the Civil War. As the difficulties 
attending reconstruction developed, and the defiant spirit 
of the people of the seceded States became more mani- 
fest, a feeling sprang up in the nation, and grew in 
favor, as it was considered that both justice and good 
policy required that suffrage should be extended to 
negroes. The first congressional legislation on this sub- 
ject was an act which passed Congress in December, 
1866, extending the right of suffrage to negroes in the 
District of Columbia. This bill was vetoed by the Pres- 
ident, but became a law in January, 1867, by its 
passage over the President's veto. This action was con- 
sidered as a proper, if not necessary, preliminary 
measure to the conferring of suffrage on the negroes 
throughout the seceded States, which was done later this 
same year by certain provisions in the reconstruction act 
which became a law notwithstanding the President's 
veto. 

The impropriety of forcing negro suffrage on the 
South, and refusing to provide for it in the North, be- 
came so apparent that Congress determined on extending 
the plan to the whole country. Another reason for this 
course was to make its adoption in the South perma- 
nent. In February, 1869, Congress passed and sub- 



OF THE UNITED STATES 225 

mittcd to the States for their approval the fifteenth 
amendment to the Constitution. This question had been 
generally discussed in the campaign of the preceding 
year, and most of the legislatures had been elected with 
the expectation of being called on to vote on such a 
measure. As a consequence the approval of the amend- 
ment was quite rapid, and in March, 1870, it was pro- 
claimed as a part of the Constitution. The wisdom of 
this measure need not be discussed here, but it was the 
completion of a national scheme for the protection of 
the rights of a people who had spent hundreds of years 
in bondage. 



226 CONSTITUTIONAL HISTORY 



VII 



SEVERAL TOPICS BEARING ON THE GENERAL 
SUBJECT 

PRELIMINARY REMARKS 

In a constitutional history mention might properly 
be made and, if of sufficient importance, a discussion 
presented concerning the principle, of any subject in- 
volving an application of constitutional law. In a 
government like ours these questions must necessarily be 
very numerous. Some of them are far reaching in their 
consequences and permanently affect the construction of 
the Constitution. Such topics should certainly find a 
place in any work that professes to furnish anything 
like a full and comprehensive constitutional history. 
Many more of these questions are not of so important a 
nature, and are not likely to be cited as precedents, nor 
are they likely to determine the course of constitutional 
law. While these latter topics would probably receive 
treatment in an exhaustive work on constitutional and 
political history, they cannot be said to be a necessary 
part of a constitutional history which does not profess 
to discuss the details of movements which have led to 
general results. In a work confined to the limits within 



OF THE UNITED STATES 227 

which this is to be restricted some things must be 
omitted which would find treatment in a larger work. 

In the somewhat miscellaneous matter to be brought 
in review under the topic given above I propose to men- 
tion, and briefly discuss, several subjects which have 
arisen in the course of our national history, and have 
had more or less influence in the development of some 
phase of constitutional history. If they have not been 
turning-points in our history they at least help to mark 
the course it has taken and are useful landmarks along 
the way. 

RELATION OF THE GOVERNMENT TO SLAVERY 

The Seminole War, which broke out in 1835, and 
which lasted several years, was, in a large measure, 
caused by disputes between the people of Georgia and 
the Indians over reclaiming runaway slaves. In the 
course of the war the national army was used to capture 
these slaves. Some of them thus captured were the de- 
scendants of slave parents, but had been bom among the 
Indians and had never been in actual slavery. These, 
when captured, were turned over to the masters of their 
parents. 

There was also paid out of the national treasury large 
sums of money which had been promised the soldiers as 
a bounty for bringing in alive" fugitive slaves, and some 
of these, by the terms of the capture and the negotia- 
tions in reference thereto, the Government became the 



228 CONSTITUTIONAL HISTORY 

owners of, and it also held an interest in others. Prob- 
ably most people would seek in vain for a constitutional 
provision, or any legal principle, justifying many of 
these proceedings by the national authorities. Certainly 
it was never contemplated that the general Government 
should become a slave-holder. 

During the slavery controversy it used to be fre- 
quently asserted by Southern politicians that the Con- 
stitution recognized slaves as property, and even some 
courts were supposed to have so held in some of their 
decisions. But whatever courts may have said it cannot 
be successfully maintained that slaves are recognized as 
property, either directly or indirectly, anywhere in the 
Constitution. The Constitution inferentially recognized 
the existence of an institution called slavery as prevail- 
ing in certain States, and provided that "persons" which 
this institution decreed to render service should be re- 
turned to their masters if they escaped to another State. 
This was perhaps equivalent to recognizing the fact that 
in certain States such persons were treated as property. 
But that was a very different thing from the recogni- 
tion in and by the Constitution of property in persons ; 
and such a recognition can nowhere be found in or 
gathered from the Constitution. On no foot of soil did 
slavery exist by virtue of the Constitution. Into no part 
of the territory subject to its jurisdiction could a slave 
be carried because of the national Constitution, when 
reasonably interpreted and fairly administered. 

The claims of the South respecting slavery differed 



OF THE UNITED STATES 229 

from time to time, and different representatives of 
Southern sentiment held different views as to the relation 
of the Constitution and the general Government to 
slavery. Sometimes Congress was asked to provide for 
the protection of slavery in the territories, and some- 
times it was claimed that Congress had no right to 
exclude slavery from the territories, or, indeed, to legis- 
late upon it in any respect whatever. Finally the 
Southern claim reached the point that under the Con- 
stitution a citizen of any State might rightfully take 
his slaves into any territory of the United States and 
there hold them as securely as any other property could 
be held ; that Congress had no power over slavery in the 
territories, and could not pass a law prohibiting it, or 
even authorizing the people of the territory to do so 
while it remained a territory. The untenableness of this 
position has, perhaps, already been sufficiently shown. 



THE TERRITORIES UNDER THE CONSTITUTION 

In 1849, under a proposition to organize territorial 
governments for California and New Mexico, and to ex- 
tend the Constitution and laws of the United States over 
said territories, the question was seriously debated 
whether or not the Constitution extends proprio and eo 
ipso to the territories. Calhotin maintained that it did 
while Webster argued that it required congressional leg- 
islation to put the Constitution in force in territory 



230 CONSTITUTIONAL HISTORY 

acquired from a foreign nation since the adoption of the 
Constitution. Both recognized there was a difference in 
the relation sustained to the Union by States and terri- 
tories. But Calhoun's position was that the territories 
were subject to the obligations and entitled to the 
privileges and protection provided for in the Constitu- 
tion all the time, even though it required congressional 
action to make them available, while Webster claimed 
that the Constitution was made for States alone, those 
originally adopting it and those which should there- 
after be admitted into the Union, and that territories 
were not a part but a possession of the United States. 
In point of practice the rule as contended for by 
Webster seems to have prevailed from the organization 
of the Government, and to have been recognized by all 
its departments. In most of the treaties under which 
foreign territory has been acquired provision has been 
made for incorporating the same into the Union in due 
time. Congress has repeatedly enacted laws extending 
the Constitution and certain national legislation over the 
territories. A number of the decisions of the Supreme 
Court, if not going to the extent of holding such legis- 
lation necessary, have at least recognized the existence of 
such rule. It is true that the language of the court in 
announcing its decision in at least one case seems to favor 
the rule as contended for by Calhoun. But on the 
whole, it seems to me the rule established, or at least 
recognized, by the three departments of the Government 
requires congressional legislation to put the Constitution 



OF THE UNITED STATES 231 

and national laws in force in territory acquired from a 
foreign government. 

This question came directly before the Supreme Court 
of the United States after our acquisition of the Philip- 
pines and Porto Rico. By a divided court it was held 
that by the transfer of these islands from Spain to the 
United States under the treaty of Paris, they did not 
become a part of the United States, within the meaning 
of that term as used in the Constitution, and that it re- 
quired congressional action to place them under the pro- 
visions of the United States Constitution and laws. A 
minority of the court took strong ground in favor of 
a contrary rule, but the doctrine announced by the court 
through a majority of its members will probably be 
received as the settled policy of the Government. 

THE president's RELATION TO LEGISLATION 

The constitutional limitation on the right of the 
President to participate in legislation has never been 
clearly defined. In 1832 Congress passed a law renewing 
the charter of the Bank of the United States. Jackson 
vetoed the bill, and in his message to Congress contain- 
ing his reasons for the veto he informed that body if 
they had consulted him he would have furnished the 
frame of a law which would have been constitutional, 
and not open to the other objections contained in the 
bill which they had passed. 



232 CONSTITUTIONAL HISTORY 



POWER OF THE PRESIDENT TO DECLARE WAR 

While the Constitution confers on Congress the au- 
thority to declare war, experience proves that this right 
may practically be usurped by the President. One can 
hardly read the history of the transactions of our Gov- 
ernment, and especially of the executive department 
thereof, with Mexico, for several years prior to the 
declaration of war in May, 1846, without a clear con- 
viction that they were conducted with a view of involv- 
ing the governments in war, unless, without resorting to 
that necessity, our Government could attain her object, 
which was the acquisition of more territory. 

It is true that in the end Congress declared war, or 
assumed that because of Mexico's aggressions war ex- 
isted. But it is also true that for months, and one may 
almost say for years, before that time the executive had 
so conducted diplomatic and military operations as prac- 
tically to leave Mexico no option but to meet force with 
force, unless she chose to voluntarily concede all of our 
demands. Our diplomatic correspondence was so con- 
ducted as to prevent a spirited people's accepting our 
propositions, and our forces were so stationed as 
naturally to lead to a collision with Mexican troops; 
and then, as a consequence, a declaration of war fol- 
lowed. 

Probably the President did not violate the letter of 
the Constitution, but its spirit was certainly severely 



OF THE UNITED STATES 233 

strained by a course of conduct, without the knowledge 
or approval of Congress, and which no public exigency 
called for, which naturally and almost inevitably made 
it incumbent on Congress to declare war, or else to com- 
pel our Government to recede from the position taken 
by the executive, after the armies of the two countries 
had come into actual conflict. 



CONGRESSIONAI. CONTROI. OVER ITS RECORDS 

The power of each house over its own records was 
raised in 1837 when the Senate passed a resolution ex- 
punging from its record a resolution passed by that 
body a few years previous censuring the President of 
the United States for certain conduct. 

It was contended that inasmuch as the Constitution 
required each house to keep a record of its proceedings 
it was beyond the authority of either house to destroy 
such record. No question was made that this record cor- 
rectly stated the action taken. It was said the only right 
which the Senate then had to affect it in any way was 
by rescinding what it had formerly passed, or in some 
other way declare its present dissent from the views 
theretofore expressed. Notwithstanding these objections 
a majority of the Senate voted to expunge. It certainly 
seems very doubtful if such action was not beyond its 
constitutional right. 



234 CONSTITUTIONAL HISTORY 



FREEDOM OF SPEECH 

The bitter contest over the slavery question which was 
waged so long led to an attempt on the part of the 
champions of slavery to restrict the right of members 
of Congress to express their sentiments, even in debates 
in Congress. Early in 1842 John Quincy Adams pre- 
sented a petition asking that on account of irreconcilable 
differences regarding slavery, Congress take steps to 
secure a peaceable dissolution of the Union, and moved 
its reference to a committee with instructions to state 
the reasons why the petition should not be granted. The 
most exciting debate, perhaps, which had ever occurred 
in Congress up to that time, took place over resolutions 
to censure Adams for his conduct in presenting such a 
petition, which were at once introduced. Adams made a 
most masterly defence, and amply vindicated his right 
as a member of the House. At the close of the debate, 
which extended through several days, the resolutions of 
censure were laid on the table. 

Soon after the incident just related Joshua R. 
Giddings was severely censured for certain resolu- 
tions which he introduced in the House. He at 
once resigned his seat and appealed to the country for 
his vindication. He was triumphantly re-elected. The 
right of a member to present any appropriate matter for 
consideration, and to freely speak and express his views 
thereon, may be said to have been established from this 



OF THE UNITED STATES 235 

time, but his constitutional right so to do was not recog- 
nized until after these contests. 



FREEDOM OF THE PRESS 

The constitutional right of the freedom of the press 
was endangered during Jackson's administration by an 
attempt to exclude from the mails all abolition papers 
and documents, on the ground that they had a tendency 
to incite insurrection among the slaves of the South. A 
bill was introduced into the Senate, but did not pass, 
which provided that when the laws of any State pro- 
hibited any class of papers or documents from circulat- 
ing among the inhabitants of such State, such papers 
or documents should not be transmitted through the 
United States mail. 

THE RIGHT OF PETITION 

The right of petition is a fundamental privilege in a 
republican government. It existed in this country be- 
fore the Constitution, and its existence under the Consti- 
tution is recognized, rather than provided for, in the first 
amendment which declared that the right, which already 
existed, should not be abridged. The right to petition 
implies that the petition shall be received and considered. 
Not necessarily that it shall be discussed at length, but 
that the person or body to whom it is addressed shall 
be made acquainted with its contents and that, when it 



236 CONSTITUTIONAL HISTORY 

is addressed to a body composed of a number of members, 
any member shall have an opportunity to propose 
measures which he thinks will carry out the wishes of the 
petitioners. To deny this is to practically deny the 
right of petition, as much so as it is to refuse to receive 
the petition at all. 

This constitutional privilege was first attacked and, 
for a time, seriously threatened by the defenders of 
slavery, who feared to have the merits of that institution 
pass under public discussion, which would have resulted 
from a consideration of the petitions in reference thereto 
as they were presented to Congress. 

In the latter part of 1831 John Quincy Adams pre- 
sented to the House of Representatives a number of 
petitions asking that slavery be abolished in the District 
of Columbia. These petitions were referred to the com- 
mittee on the District, which reported that they should 
be denied, and the House so voted. Before this some 
action had been taken in Congress in reference to this 
same subject, but this was the beginning of that remark- 
able series of petitions which created such intense excite- 
ment. 

Early in 1833 a petition, similar to those just referred 
to, was presented to the House, when a motion to lay it 
on the table was made but defeated, and the petition was 
referred to the standing committee on the District. Just 
two years after this a petition of the same character 
from a large number of women from New York was laid 
on the table by a large majority of the vote of the House. 



OP THE UNITED STATES 237 

A little later in the session a number of similar petitions 
were presented to the House, and a motion was made to 
have the petitions printed. This led to a long and an 
angry debate in which the North was bitterly arraigned 
for permitting to be sent forth publications which were 
prohibited circulation by severe penalties in nearly all 
the Southern States. The first decided action taken by 
the House infringing the constitutional right of petition 
was in May, 1836, when, by a large majority, it adopted 
a resolution that thereafter all petitions presented to 
that body which in any way referred to the subject of 
slavery should be laid on the table without being printed 
or referred. This action was boldly denounced by 
Adams as unconstitutional and a violation of the rights 
of his constituents. 

Some four months prior to this, in January, 1836, in 
the Senate, Calhoun had moved that some petitions of 
this nature be not received. This elicited a very note- 
worthy discussion in which the right of petitions, as well 
as the general subject of slavery, was elaborately con- 
sidered. This discussion ran through several weeks, at 
the conclusion of which Calhoun's motion was defeated 
by more than a three-fourths vote. But, at the same 
time, an understanding was had in the Senate that all 
similar petitions should be formally rejected without 
reference or debate. Thus, while a formal recognition 
of the constitutional guaranty was observed, its practi- 
cal effect was destroyed, and the spirit of the Constitu- 
tion was as clearly violated as would have been done by 



238 CONSTITUTIONAL HISTORY 

the adoption of Calhoun's motion to not receive such 
petitions. And the same may be said of the resolution 
adopted by the House, to which reference has been 
made above. 

It was a foregone conclusion that an institution which 
could only be supported and preserved by a suppression, 
in public discussion, of all reference to its existence and 
character must either perish or destroy the Constitu- 
tion itself. It was, perhaps, well for the country that 
thus publicly and authoritatively was placed on record 
the absolutely irreconciliable difference between slavery 
and free speech, and that unless the people were prepared 
to surrender this palladium of their liberties they must 
throttle, at whatever cost, the enemy which demanded 
its destruction. 

I do not care to occupy much space in referring to 
the flimsy excuse of a reason put forth in this discus- 
sion that there was no violation of the Constitution in 
the passage of such a resolution, as was adopted by the 
House, directing that all petitions which in any way re- 
ferred to slavery should lie on the table without any 
publicity whatever being given to their contents. It was 
said the Constitution declared that no law should be 
passed abridging the right of petition ; and, as this was 
not a law but only a resolution, it did not contravene the 
constitutional provision. Who but an advocate of such 
an institution as they were trying to uphold could put 
forth such a reason — that the House might do with im- 
punity what both houses and the President could not do 



OF THE UNITED STATES 239 

together? It was also urged that the right of petition 
was not denied for the petitions themselves were received. 
But of what advantage to anyone was it for the House 
to receive a paper which no one was allowed to open, 
read, or in any way ascertain its contents? The principle 
announced by the House resolution, if adhered to, was an 
important step toward supplanting personal freedom 
by the rule of absolutism. 

From 1836 to 1840 the House continued to adopt, 
from session to session, by a larger or a smaller majority, 
the same gag resolution, with various modifications 
somewhat broadening its scope. But in 1840 the House 
of Representatives came up to Calhoun's standard and 
adopted the rule, which four years before he had pro- 
posed to the Senate, that no resolution relating to the 
subject of abolishing slavery should be received. It 
would seem as though the House had now reached the 
lowest point to which it could descend respecting the sub- 
ject of petition. But it was destined to propose a 
measure so far transcending what it had theretofore 
done that even those who had theretofore placed their 
necks under the slave-holder's yoke now refused to make 
themselves responsible for carrying through the pro- 
posed act of infamy. 

In January, 1842, John Quincy Adams presented pe- 
titions from citizens of Massachusetts asking that Con- 
gress take steps to secure a peaceable dissolution of the 
Union, and moved their reference to a committee with 
instructions to report reasons why the petitions should 



240 CONSTITUTIONAL HISTORY 

not be granted. The reason given in the petitions why 
their prayer was made was the difference then existing 
between the two sections of the country over the question 
of slavery. There was no limit to the anger of the 
Southern members of Congress over this action. The 
most bitter denunciations were heaped on Adams, and 
resolutions proposing the most severe censure the House 
could inflict were introduced. Adams's defence was 
masterly, and when he was through the backbone of gag 
rule had been broken. The smallest part of the victory 
was the complete exoneration of Adams, for a censure, 
however severe, from such a power would not have hurt 
him ; but from this time the country could rest easier on 
one question at least — the right of petition had been vin- 
dicated. Before this the petition itself was to be sup- 
pressed, but now the proposition had been to punish the 
party who had the hardihood to present it. We can 
hardly presume that this battle will ever again have to 
be fought over in any American legislature. 

From 1836, when he commenced the struggle for the 
reception of petitions for the abolition of slavery in the 
District of Columbia, till his proud triumph over the 
enemies of petition and free speech in 1842, when the 
slave power had sought to crush him, John Quincy 
Adams was the unflinching champion of the cause of the 
constitutional right of petition and free speech. The 
spirit of the Constitution was as much violated by the 
House resolution of 1836, which placed all petitions of 
a certain character on the table without publicity, as it 



OF THE UNITED STATES 241 

was by that of 1840, which absolutely refused to receive 
them, or by the resolution of 1842, which proposed to 
punish a member for introducing such a petition in the 
House. But it was not till the shamelessness of the latter 
opened the eyes of some of the members of Congress that 
the constitutional right of the citizen could be vindi- 
cated. No one can compete with John Quincy Adams 
for the honor of vindicating this important principle. 

In this important contest over the right of petition 
amid much that was heroic and not a little that was al- 
most tragic, there was some of the ludicrous. When 
Adams presented a petition the supposition was, without 
inquiry, that it was for the abolition of slavery in the 
District of Columbia. In February, 1837, he informed 
the House that he held in his hands a petition which he 
would not present till the speaker ruled on the question 
whether or not it was covered by the rule the House had 
adopted respecting laying on the table all petitions re- 
lating to slavery. He said that the petition came from 
slaves, but he did not say what request the petition con- 
tained. Of course the House supposed it was the aboli- 
tion of slavery, and for this reason, but more especially 
because it came from slaves, the Southern members were 
furious. A petition from slaves had never before been 
heard of. Resolutions censuring Adams were intro- 
duced. He allowed matters to take their natural course 
until the slavocrats had fully committed themselves, and 
then he informed them that the petition did not ask for 
the abolition of slavery, but for the reverse. When they 



242 CONSTITUTIONAL HISTORY 

saw the ridiculous position into which Adams had led 
them, or rather had allowed them to place themselves, 
the Southern leaders were more furious than ever. But 
there was no escape for them. No bare reference to this 
transaction can give the reader any fair conception of 
the situation. Under all the circumstances it was really 
a very important affair, but to be appreciated the dis- 
cussion must be read in full. 



CONSTITUTIONAIilTY OF THE LEGAL-TENDER ACT 

The Continental Congress authorized the issue of bills 
of credit for the purpose of defraying the expenses of 
the Government in organizing armies and carrying on 
the war, and went so far as to declare that if anyone 
should be so unpatriotic as to refuse to receive them as 
money he should be deemed and treated as an enemy of 
his country. And, on the recommendation of Congress, 
the several colonies made these bills of credit a legal 
tender, and declared that by their tender, notwith- 
standing they were refused, the debt should be can- 
celled. 

The Constitution confers no direct power on Congress 
to issue bills of credit, nor does it directly prohibit the 
same. Such power is, however, directly withheld from 
the States. Notwithstanding the silence of the Consti- 
tution on the subject, the power of Congress to direct 
the issue of Government bills, without the legal tender 



OF THE UNITED STATES 243 

quality, is conceded by all parties as one of the implied 
powers of Government. 

While treasury notes or bills of credit had frequently 
been issued by the Government they had never, prior to 
1862, been given the quality of a legal tender in the 
payment of debts. Up to that time gold and silver had 
formed the only money of the country since the founda- 
tion of the Government. 

At the opening of the Civil War in 1861 the Govern- 
ment found itself without either money or credit. 
Either designedly or through culpable carelessness those 
who had been in charge of the Government had failed to 
provide any adequate revenue for carrying on its busi- 
ness, even on a peace basis, and had so conducted its 
financial measures that capitalists were afraid to loan 
their funds on the Government's promise. The inaugura- 
tion of war of course greatly increased this difficulty. At 
the special session of Congress which convened on July 
4, 1861, an attempt was made to meet this difficulty by 
authorizing an additional issue of treasury notes, by a 
further issue of Government bonds, and by an increase 
of revenue through taxation. But this by no means 
solved the difficulty. And by the close of the year it 
was practically impossible to meet the Government obli- 
gations. 

Under these conditions a bill was introduced into Con- 
gress in December, 1861, authorizing the Government 
to issue its notes, which, with certain exceptions, should be 
a legal tender for debts, public and private. This was 



244 CONSTITUTIONAL HISTORY 

not only a new but a bold undertaking. The proposition 
at once encountered the most determined opposition. Its 
friends and its enemies were not divided by party lines. 
It is true that the great majority of those who sup- 
ported it were members of the party which was in control 
of the Government, while most of those who opposed 
the measure were in the minority party in Congress. 
Still, many leading Republicans vigorously opposed the 
bill, and several Democrats in the Senate voted for it. 
Nor were the friends and opponents of the bill divided 
on lines of recognized standing or want of ability in the 
field of finances. While the bill was championed by 
many whose authority on the money question was recog- 
nized everywhere, at the same time some of the leading 
financiers of the country were as earnestly opposing its 
passage. 

Both the constitutionality and the feasibility of the 
bill were attacked. Its opponents asserted that no con- 
stitutional provision could be pointed to which in any 
way authorized the act, that it was in conflict with the 
whole practice of the Government since its organization, 
that it was a direct violation of contract, that it was 
taking private property without due process of law, and 
that, instead of relieving the national difficulty, it would 
plunge the Government into still deeper trouble. 

On the other hand, the supporters of the bill rested 
their adhesion to the measure on various grounds. It 
was admitted, by many at least, that it might, in a 
measure, at times tend to impair the obligation of con- 



OF THE UNITED STATES 245 

tracts, but it was said there was no constitutional re- 
straint as to this action on the part of the general Gov- 
ernment, that restriction resting alone on the States. It 
was said that because the Government had never before 
attempted to exercise the power was no argument 
against either its existence or the expediency of exer- 
cising it at this time, for the Government had never 
before confronted such financial difficulties as it had to 
grapple with at that time. Some found authority for 
the bill in the necessities of war, others asserted the 
authority to be incident to the general power of Con- 
gress over commerce, and therefore the medium whereby 
commerce is carried on. The general power of Con- 
gress over the currency of the country was also appealed 
to as favoring the provisions of the bill. 

The debate in both Houses of Congress was able and 
exhaustive. Few bills have ever received more careful 
consideration, or been passed after a more earnest and 
elaborate discussion, participated in by a very large num- 
ber of the leading men of both parties. The bill, having 
finally received a large majority in each House of Con- 
gress, was approved by the President and became a law 
on February 25, 1862. 

When the legal tender acts got into court they, per- 
haps, underwent a severer contest and a more searching 
scrutiny than they had received in Congress. Mr. Chase, 
who, as Secretary of the Treasury at the time the first 
act was introduced into Congress, had recommended its 
passage, was now Chief Justice of the Supreme Court 



246 CONSTITUTIONAL HISTORY 

of the United States, and as such elaborately and ably 
argued against the constitutionality, and therefore the 
validity of the law. 

When the case involving the constitutionality of the 
legal tender acts was first argued in the Supreme Court 
that tribunal was composed of eight justices. But in 
January, 1870, after the case had been argued and the 
judgment of the court determined on, but not an- 
nounced, one member resigned, leaving the court com- 
posed of but seven members. Of these the Chief Justice 
and three associate justices were of the opinion that 
the act was unconstitutional, and this opinion was 
shared by the justice who but a few days prior to the 
announcement of the decision had resigned, while only 
three justices voted to sustain the validity of the law. 
This decision was announced on February 7, 1870. 

An application being made therefor a rehearing was 
granted by the court. In the meantime, however, the 
court had been increased by the appointment of two new 
associate justices, making it thereby to consist of nine 
members. The entire question of the constitutionality 
of the legal tender acts was again ably argued before 
the whole court. Whereupon the former decision 
against the validity of the law was reversed by a vote 
of five justices to four, in a decision which was announced 
on May 1, 1870. The Chief Justice and the three asso- 
ciate justices who had agreed with him in the first de- 
cision still adhered to their original opinion, while the 
two new justices joined the three who had before formed 



OF THE UNITED STATES 247 

the minority of the court and now constituted the ma- 
jority, by whom the law was pronounced constitutional 
and binding. 

The question so far discussed and determined related 
to the power of the Government to issue legal tender 
notes in time of war. But in 1884< the question of the 
legality of such notes issued in time of peace came be- 
fore the court, and, with but one justice dissenting, it 
was held that such notes were also constitutional and 
valid. In the opinion of the court, therefore, the basis 
for the right of the Government to issue this quality of 
paper is not the exigencies of war. 

The discussion of this measure in Congress, at the 
bar, and by the court, to say nothing of the scarcely 
less able discussion throughout the country, shows how 
divided was the opinion of those who are qualified to 
speak on the question of the authority of the Govern- 
ment to make its promises of payment a legal tender in 
the discharge of debts and the transaction of other busi- 
ness. My own views are decidedly with those who main- 
tained the constitutionality of the law. Not to have 
exercised this power at the time of the passage of the 
first act on that subject seems to me would have been 
disastrous to the Government. Experience has, as I 
think, demonstrated the wisdom of the measure when 
looked at from the standpoint of policy and expediency, 
and when viewed from the standpoint of constitutional 
power I think the argument is very much stronger for 
than opposed to the right of the Government to exercise 



248 CONSTITUTIONAL HISTORY 

such authority. From what has been done by the vari- 
ous departments of the Government the right of the 
Government to issue legal tender notes whenever it 
deems such action best would now seem to be fully 
established. 



GOVERNMENT BY INJUNCTION 

New developments in social and business life call for 
the exercise of new features in the powers of the Govern- 
ment. It may be the adoption of new methods or it may 
be simply a new application, in some slightly different 
manner, perhaps, of old and well recognized principles 
of government. There may be times when disorder and 
an unusual exercise of physical force by unauthorized 
powers are necessary for the attainment of the highest 
and best ends in human society. But, as a rule, civili- 
zation requires government and not anarchy, orderly 
conduct and not mob violence. 

In 1894 occurred the great industrial strike which, 
for the first time in our history, called into exercise the 
national forces to regulate and control forces set in 
operation by a contest between organized operatives and 
their employees. There had been strikes before this, but 
nothing of the kind which, for magnitude and the inter- 
ests thereby put at stake, had any comparison with the 
one in 1894. Originating in a controversy between a 
company engaged in manufacturing and operating 
sleeping-cars and its employees over their wages, it ex- 



OF THE UNITED STATES 249 

tended to all the principal lines of railroad service in 
the country, and then to several other general industries. 

The centre of the strike and its disorders was located 
in the city of Chicago, but its territory extended to the 
shores of the Pacific. The interference by the National 
Government was caused, primarily, by the strikers' ob- 
struction of the United States mails. The judicial de- 
partment of the Government was appealed to for relief, 
and the courts issued injunctions against those who were 
directing the disorderly elements, restraining their inter- 
ference with the mails and with inter-state commerce. 
These orders were disregarded, and the arrest and im- 
prisonment of Eugene V. Debs and his associates for 
contempt of court followed. The Debs case went to 
the Supreme Court of the United States, where the prin- 
ciple applied by the Circuit Court was fully sustained. 
The inability of the civil officers to enforce the orders 
of the court called for the employment of the military 
power, and the regular army was called into active 
operation. All of these measures of the National Gov- 
ernment were unqualifiedly condemned by the strikers 
as an unwarranted and unconstitutional exercise of 
power. President Cleveland's firm course met the ap- 
proval of the business interests, and generally of the 
orderly people of the country. Apparently it was the 
only thing which could have prevented the greatest 
destruction of life and property, and a complete pros- 
tration of business. 

If the action of the courts was warranted then the use 



250 CONSTITUTIONAL HISTORY 

of the military followed as a matter of course. So that, 
in discussing the question constitutionally, nothing need 
be said of the use of the army. That may always be 
used to enforce the decrees of the court when the civil 
officers are unable to do so with the forces at their dis- 
posal. 

The issuance of injunctions in these strike cases was 
no new departure in government. It was but the appli- 
cation of a well-recognized legal remedy to new phases 
of public conduct. The popular cry against "Govern- 
ment by Injunction" which followed the measures to 
which I have referred was only the objection of those 
who want to be a law unto themselves against the exer- 
cise of restraint by the strong hand of the law, con- 
stitutionally administered. There was no element of 
despotism in this action on the part of the Government, 
but only the effort of society to protect itself against 
anarchy through somewhat new, but perfectly constitu- 
tional means. 



OF THE UNITED STATES 251 



APPENDIX A 

ARTICLES OF CONFEDERATION 

And Perpetual Union between the States of Newhampshire, 
Massachusetts-bay, Rhodeisland and Providence Planta- 
tions, Connecticut, New-York, New Jersey, Pennsyl- 
vania, Delaware, Maryland, Virginia, North-Carolina, 
South-Carolina and Georgia. 

Article I. The stile of this confederacy shall be "The 
United States of America." 

Article II. Each State retains its sovereignty, freedom 
and Independence, and every power, jurisdiction and 
right, which is not by this confederation expressly dele- 
gated to the United States, in Congress assembled. 

Article III. The said States hereby severally enter 
into a firm league of friendship with each other, for their 
common defence, the security of their liberties, and their 
mutual and general welfare, binding themselves to assist 
each other, against all force offered to, or attacks made upon 
them, or any of them, on account of religion, sovereignty, 
trade, or any other pretence whatever. 

Article IV. The better to secure and perpetuate mu- 
tual friendship and intercourse among the people of the 
different States in this Union, the free inhabitants of each 
of these States, paupers, vagabonds and fugitives from 
justice excepted, shall be entitled to all privileges and im- 
munities of free citizens in the several States; and the peo- 



252 CONSTITUTIONAL HISTORY 

pie of each State shall have free ingress and regress to and 
from any other State, and shall enjoy therein all the 
privileges of trade and commerce, subject to the same 
duties, impositions and restrictions as the inhabitants 
thereof respectively, provided that such restrictions shall 
not extend so far as to prevent the removal of property 
imported into any State, to any other State of which the 
owner is an inhabitant; provided also that no imposition, 
duties or restriction shall be laid by any State, on the prop- 
erty of the United States, or either of them. 

If any person guilty of, or charged with treason, felony, 
or other high misdemeanor in any State, shall flee from 
justice, and be found in any of the United States, he shall 
upon demand of the Governor or Executive power, of the 
State from which he fled, be delivered up and removed to 
the State having jurisdiction of his off'ence. 

Full faith and credit shall be given in each of these 
States to the records, acts and judicial proceedings of the 
courts and magistrates of every other State. 

Article V. For the more convenient management of 
the general interests of the United States, delegates shall 
be annually appointed in such manner as the legislature of 
each State shall direct, to meet in Congress on the first 
Monday in November, in every year, with a power reserved 
to each State, to recall its delegates, or any of them, at any 
time within the year, and to send others ^n their stead, for 
the remainder of the year. 

No State shall be represented in Congress by less than 
two, nor by more than seven members; and no person shall 
be capable of being a delegate for more than three years 
in any term of six years; nor shall any person, being a 
delegate, be capable of holding any office mider the United 
States, for which he, or another for his benefit receives 
any salary, fees or emolument of any kind. 



OF THE UNITED STATES 253 

Each State shall maintain its own delegates in a meet- 
ing of the States, and while they act as members of the 
committee of the States. 

In determining questions in the United States, in Con- 
gress assembled, each State shall have one vote. 

Freedom of speech and debate in Congress shall not be 
impeached or questioned in any court, or place out of Con- 
gress, and the members of Congress shall be protected in 
their persons from arrests and imprisonments, during the 
time of their going to and from, and attendance on Con- 
gress, except for treason, felony, or breach of the peace. 

Article VI. No State without the consent of the 
United States in Congress assembled, shall send any em- 
bassy to, or receive any embassy from, or enter into any 
conference, agreement, alliance or treaty with any king, 
prince or state; nor shall any person holding any office 
of profit or trust under the United States, or any of them, 
accept of any present, emolument, office or title of any 
kind whatever from any king, prince or foreign state; 
nor shall the United States in Congress assembled, or any 
of them, grant any title of nobility. 

No two or more States shall enter into any treaty, con- 
federation or alliance whatever between them, without the 
consent of the United States in Congress assembled, speci- 
fying accurately the purposes for which the same is to be 
entered into, and how long it shall continue. 

No State shall lay any imposts or duties, which may in- 
terfere with any stipulations in treaties, entered into by the 
United States in Congress assembled, with any king, 
prince or state, in pursuance of any treaties already pro- 
posed by Congress, to the courts of France and Spain. 

No vessels of war shall be kept up in time of peace by 
any State, except such number only, as shall be deemed 
necessary by the United States in Congress assembled, 



254 CONSTITUTIONAL HISTORY 

for the defence of such State^ or its trade; nor shall any- 
body of forces be kept up by any State, in time of peace, 
except such number only, as in the judgment of the United 
States, in Congress assembled, shall be deemed requisite 
to garrison the forts necessary for the defence of such 
State; but every State shall always keep up a well regu- 
lated and disciplined militia, sufficiently armed and ac- 
coutered, and shall provide and constantly have ready for 
use, in public stores, a due number of field pieces and 
tents, and a proper quantity of arms, ammunition and 
camp equipage. 

No State shall engage in any war without the consent 
of the United States in Congress assembled, unless such 
State be actually invaded by enemies, or shall have re- 
ceived certain advice of a resolution being formed by some 
nation of Indians to invade such State, and the danger is 
so imminent as not to admit of a delay, till the United 
States in Congress assembled can be consulted: nor shall 
any State grant commissions to any ships or vessels of 
war, nor letters of marque or reprisal, except it be after a 
declaration of war by the United States in Congress as- 
sembled, and then only against the kingdom or state and 
the subjects thereof, against which war has been so de- 
clared, and under such regulations as shall be established 
by the United States in Congress assembled, unless such 
State be infested by pirates, in which case vessels of war 
may be fitted out for that occasion, and kept so long as 
the danger shall continue, or until the United States in 
Congress assembled shall determine otherwise. 

Article VII. When land-forces are raised by any State 
for the common defence, all officers of or under the rank 
of colonel, shall be appointed by the Legislature of each 
State respectively by whom such forces shall be raised, or 
in such manner as such State shall direct, and all vacancies 



OF THE UNITED STATES 255 

shall be filled up by the State which first made the appoint- 
ment. 

Article VIII. All charges of war, and all other ex- 
penses that shall be incurred for the common defence or 
general welfare, and allowed by the United States in Con- 
gress assembled, shall be defrayed out of a common treasury, 
which shall be supplied by the several States, in proportion 
to the value of all land within each State, granted to or sur- 
veyed for any person, as such land and the buildings and 
improvements thereon shall be estimated according to such 
mode as the United States in Congress assembled, shall 
from time to time direct and appoint. 

The taxes for paying that proportion shall be laid and 
levied by the authority and direction of the Legislatures 
of the several States within the time agreed upon by the 
United States in Congress assembled. 

Article IX. The United States in Congress assembled, 
shall have the sole and exclusive right and power of de- 
termining on peace and war, except in the cases mentioned 
in the sixth article — of sending and receiving ambassa- 
dors — entering into treaties and alliances, provided that no 
treaty of commerce shall be made whereby the legislative 
power of the respective States shall be restrained from im- 
posing such imposts and duties on foreigners, as their own 
people are subjected to, or from prohibiting the exporta- 
tion or importation of any species of goods or commodities 
whatsoever — of establishing rules for deciding in all cases, 
what captures on land or water shall be legal, and in what 
manner prizes taken by land or naval forces in the service 
of the United States shall be divided or appropriated — of 
granting letters of marque and reprisal in times of peace — 
appointing courts for the trial of piracies and felonies com- 
mitted on the high seas and establishing courts for receiv- 
ing and determining finally appeals in all cases of captures, 



256 CONSTITUTIONAL HISTORY 

provided that no member of Congress shall be appointed 
a judge of any of the said courts. 

The United States in Congress assembled shall also be 
the last resort on appeal in all disputes and differences now 
subsisting or that hereafter may arise between two or more 
States concerning boundary, jurisdiction or any other 
cause whatever; which authority shall always be exercised 
in the manner following. Whenever the legislative or 
executive authority or lawful agent of any State in con^ 
troversy with another shall present a petition to Congress, 
stating the matter in question and praying for a hearing, 
notice thereof shall be given by order of Congress to the 
legislative or executive authority of the other State in con- 
troversy, and a day assigned for the appearance of the 
parties by their lawful agents, who shall then be directed 
to appoint by joint consent, commissioners or judges to 
constitute a court for hearing and determining the matter 
in question: but if they cannot agree. Congress shall name 
three persons out of each of the United States, and from 
the list of such persons each party shall alternately strike 
out one, the petitioners beginning, imtil the number shall 
be reduced to thirteen; and from that number not less than 
seven, nor more than nine names as Congress shall direct, 
■ shall in the presence of Congress be drawn out by lot, and 
the persons whose names shall be so drawn or any five of 
them shall be commissioners or judges, to hear and finally 
determine the controversy, so always as a major part of 
the judges who shall hear the cause shall agree in the de- 
termination: and if either party shall neglect to attend at 
the day appointed, without showing reasons, which Con- 
gress shall judge sufficient, or being present shall refuse 
to strike, the Congress shall proceed to nominate three per- 
sons out of each State, and the Secretary of Congress shall 
strike in behalf of such party absent or refusing; and the 



OF THE UNITED STATES 257 

judgment and sentence of the court to be appointed, in the 
manner before prescribed, shall be final and conclusive; 
and if any of the parties shall refuse to submit to the 
authority of such court, or to appear or defend their claim 
or cause, the court shall nevertheless proceed to pronounce 
sentence, or judgment, which shall in like manner be final 
and decisive, the judgment or sentence and other proceed- 
ings being in either case transmitted to Congress, and 
lodged among the acts of Congress for the security of 
the parties concerned: provided that every commissioner, 
before he sits in judgment, shall take an oath to be ad- 
ministered by one of the judges of the supreme or superior 
court of the State where the cause shall be tried, "well and 
truly to hear and determine the matter in question, accord- 
ing to the best of his judgment, without favor, affection or 
hope of reward:" provided also that no State shall be de- 
prived of territory for the benefit of the United States, 

All controversies concerning the private right of soil 
claimed under different grants of two or more States, whose 
jurisdiction as they may respect such lands, and the States 
which passed such grants are adjusted, the said grants or 
either of them being at the same time claimed to have 
originated antecedent to such settlement of jurisdiction, 
shall on the petition of either party to the Congress of the 
United States, be finally determined as near as may be in 
the same manner as is before prescribed for deciding dis- 
putes respecting territorial jurisdiction between different 
States. 

The United States in Congress assembled shall also have 
the sole and exclusive right and power of regulating the 
alloy and value of coin struck by their own authority, or 
by that of the respective States — fixing the standard of 
weights and measures throughout the United States — 
regulating the trade and managing all affairs with the 



258 CONSTITUTIONAL HISTORY 

Indians^ not members of any of the States^ provided that 
the legislative right of any State within its own limits be 
not infringed or violated — establishing and regulating 
post-offices from one State to another, throughout all the 
United States, and exacting such postage on the papers 
passing through the same as may be requisite to defray the 
expenses of the said office — appointing all officers of the 
land forces, in the service of the United States, excepting 
regimental officers — appointing all the officers of the naval 
forces, and commissioning all officers whatever in the 
service of the United States — making rules for the Govern- 
ment and regulation of the said land and naval forces, and 
directing their operations. 

The United States in Congress assembled shall have 
authority to appoint a committee, to sit in the recess of 
Congress, to be denominated "a Committee of the States," 
and to consist of one delegate from each State; and to 
appoint such other committees and civil officers as may be 
necessary for managing the general affairs of the United 
States under their direction — to appoint one of their num- 
ber to preside, provided that no person be allowed to serve 
in the office of president more than one year in any term 
of three years; to ascertain the necessary sums of money 
to be raised for the service of the United States, and to 
appropriate and apply the same for defraying the public 
expenses — to borrow money, or emit bills on the credit of 
the United States, transmitting every half year to the 
respective States on account of the sums of money so bor- 
rowed or remitted — to build and equip a navy — to agree 
upon the number of land forces, and to make requisitions 
from each State for its quota, in proportion to the number 
of white inhabitants in such State; which requisition shall 
be binding, and thereupon the Legislature of each State 
shall appoint the regimental officers, raise the men and 



OF THE UNITED STATES 259 

cloath, arm and equip them in a soldier like manner, at the 
expense of the United States ; and the officers and men so 
cloathed, armed and equipped shall march to the place ap- 
pointed, and within the time agreed on by the United 
States in Congress assembled: but if the United States in 
Congress assembled shall, on consideration of circum- 
stances judge proper that any State should not raise men, 
or should raise a smaller number than its quota, and that 
any other State should raise a greater number of men than 
the quota thereof, such extra number shall be raised, offi- 
cered, cloathed, armed and equipped in the same manner 
as the quota of such State, unless the legislature of such 
State shall judge that such extra number cannot be safely 
spared out of the same, in which case they shall raise, 
officer, cloath, arm and equip as many of such extra num- 
ber as they judge can be safely spared. And the officers 
and men so cloathed, armed and equipped, shall march to 
the place appointed, and within the time agreed on by the 
United States in Congress assembled. 

The United States in Congress assembled shall never 
engage in a war, nor grant letters of marque and reprisal 
in time of peace, nor enter into any treaties or alliances, 
nor coin money, nor regulate the value thereof, nor ascer- 
tain the sums and expenses necessary for the defence and 
welfare of the United States, or any of them, nor emit 
bills, nor borrow money on the credit of the United States, 
nor appropriate money, nor agree upon the number of ves- 
sels of war, to be built or purchased, or the number of land 
or sea forces to be raised, nor appoint a commander in chief 
of the army or navy, unless nine States assent to the same: 
nor shall a question on any other point, except for ad- 
journing from day to day be determined, unless by the 
votes of a majority of the United States in Congress as- 
sembled. 



260 CONSTITUTIONAL HISTORY 

The Congress of the United States shall have power to 
adjourn to any time within the year, and to any place 
within the United States, so that no period of adjournment 
be for a longer duration than the space of six months, and 
shall publish the journal of their proceedings monthly, 
except such parts thereof relating to treaties, alliances or 
military operations, as in their judgment require secrecy; 
and the yeas and nays of the delegates of each State on 
any question shall be entered on the journal, when it is 
desired by any delegate; and the delegates of a State, or 
any of them, at his or their request shall be furnished with 
a transcript of the said journal, except such parts as are 
above excepted, to lay before the Legislatures of the 
several States. 

Article X. The committee of the States, or any nine 
of them shall be authorized to execute, in the recess of 
Congress, such of the powers of Congress as the United 
States in Congress assembled, by the consent of nine States, 
shall from time to time think expedient to vest them with; 
provided that no power be delegated to the said committee, 
for the exercise of which, by the articles of confederation, 
the voice of nine States in the Congress of the United 
States assembled is requisite. 

Article XI. Canada acceding to this confederation, 
and joining in the measures of the United States, shall 
be admitted into, and entitled to all the advantages of 
this Union: but no other colony shall be admitted into 
the same, unless such admission be agreed to by nine 
States. 

Article XII. All bills of credit emitted, monies bor- 
rowed and debts contracted by, or under the authority of 
Congress, before the assembling of the United States, in 
pursuance of the present confederation, shall be deemed 
and considered as a charge against the United States, for 



OF THE UNITED STATES 261 

payment and satisfaction whereof the said United States, 
and the public faith are hereby solemnly pledged. 

Article XIII. Every State shall abide by the determi- 
nations of the United States in Congress assembled, on all 
questions which by this confederation are submitted to them. 
And the articles of this confederation shall be inviolably 
observed by every State, and the Union shall be perpetual; 
nor shall any alteration at any time hereafter be made in 
any of them ; unless such alteration be agreed to in a Con- 
gress of the United States, and be afterwards confirmed by 
the Legislatures of every State. 

In witness whereof we have hereunto set our hands in 
Congress. Done at Philadelphia in the State of Pennsyl- 
vania the ninth day of July in the year of our Lord one 
thousand seven hundred and seventy-eight, and in the third 
year of the Independence of America. 

On the part 8^ behalf of the State of New Hampshire. 

JosiAH Bartlett, John Wentworth, Junr. 

On the part and behalf of the State of Massachusetts Bay. 

John Hancock, Francis Dana, 

Samuel Adams, James Lovell, 

Eldbridge Gerry, Samuel Holten. 

On the part and behalf of the State of Rhode Island and 
Providence Plantations. 

William Ellery, John CoL(Lins. 

Henry Marchant, 

On the part and behalf of the State of Connecticut, 

Roger Sherman, Titus Hosmer, 

Samuel Huntington, Andrew Adams. 

Oliver Wolcott, 



262 CONSTITUTIONAI. HISTORY 

On the part and behalf of the State of New York. 

Jas. Duane, Wm. Duer, 

Fra. Lewis, Gouv. Morris. 

On the part and in behalf of the State of New Jersey. 
Jno. Witherspoon, Nathl. Scudder. 

On the part and behalf of the State of Pennsylvania. 
RoBT. Morris, William Clingan, 

Daniel Roberdeau, Joseph Reed. 

JoNA. Bayard Smith, 

On the part 8^ behalf of the State of Delaware. 
Tho. M'Kean, Nicholas Van Dyke. 

John Dickinson, 

On the part and behalf of the State of Maryland. 
John Hanson, Daniel Carroll. 

On the part and behalf of the State of Virginia. 

Richard Henry Lee, Jno. Harvie, 

John Banister, Francis Lightfoot Lee. 
Thomas Adams, 

On the part and behalf of the State of No. Carolina. 
John Penn, Jno. Williams. 

Corns. Harnett, 

On the part 8^ behalf of the State of South Carolina. 
Henry Laurens, Richd. Hutson, 

William Henry Drayton, Thos. Heyward, Junr. 
Jno. Mathews, 

On the part 8f behalf of the State of Georgia. 
Jno. Walton, Edwd. Langworthy. 

Edwd. Telfair, 



OF THE UNITED STATES 263 

The Articles of Confederation were agreed to and adopted by Con- 
gress on November 15, 1777. After some delay they were submitted to 
the Legislatures of the several States for their approval. On July 9, 
1778, the delegates from several of the States having been authorized by 
the Legislatures so to do, signed the Articles and thereby gave effect to 
their States' ratification thereof. The last State to ratify was Maryland ; 
by direction of her Legislature her delegates in Congress affixed their 
names to the Articles on March 1, 1781; on the following day Congress 
assembled for the first time under the powers conferred by the Articles 
of Confederation. 



264 CONSTITUTIONAL HISTORY 

APPENDIX B 

CONSTITUTION OF THE UNITED STATES 

We the People of the United States, in Order to form a 
more perfect Union, establish Justice, insure domestic Tran- 
quility, provide for the common defence, promote the gen- 
eral Welfare, and secure the Blessings of Liberty to our- 
selves and our Posterity, do ordain and establish this Con- 
stitution for the United States of America. 

Article I 

Section 1. All legislative Powers herein granted shall 
be vested in a Congress of the United States, which shall 
consist of a Senate and House of Representatives. 

Section 2. The House of Representatives shall be com- 
posed of Members chosen every second Year by the People 
of the several States, and the Electors in each State shall 
have the Qualifications requisite for Electors of the most 
numerous Branch of the State Legislature. 

No Person shall be a Representative who shall not have 
attained to the Age of twenty five Years, and been seven 
Years a Citizen of the United States, and who shall not, 
when elected, be an Inhabitant of that State in which he 
shall be chosen. 

Representatives and direct Taxes shall be apportioned 
among the several States which may be included within 
this Union, according to their respective Numbers, which 
shall be determined by adding to the whole Number of free 
Persons, including those bound to Service for a Term of 



OF THE UNITED STATES 265 

Years, and excluding Indians not taxed, three fifths of all 
other Persons. The actual Enumeration shall be made 
within three Years after the first Meeting of the Congress 
of the United States, and within every subsequent Term of 
ten Years, in such Manner as they shall by Law direct. 
The Number of Representatives shall not exceed one for 
every thirty Tliousand, but each State shall have at Least 
one Representative ; and until such enumeration shall be 
made, the State of New Hampshire shall be entitled to 
chuse three, Massachusetts eight, Rhode-Island and Pro- 
vidence Plantations one, Connecticut five. New- York six. 
New Jersey four, Pennsylvania eight, Delaware one, Mary- 
land six, Virginia ten. North Carolina five. South Carolina 
five, and Georgia three. 

When vacancies happen in the Representation from any 
State, the Executive Authority thereof shall issue Writs 
of Election to fill such Vacancies. 

The House of Representatives shall chuse their Speaker 
and other Officers; and shall have the sole Power of Im- 
peachment. 

Section 3. The Senate of the United States shall be 
composed of two Senators from each State, chosen by the 
Legislature thereof, for six Years; and each Senator shall 
have one Vote. 

Immediately after they shall be assembled in Conse- 
quence of the first Election, they shall be divided as equally 
as may be into three Classes. The Seats of the Senators of 
the first Class shall be vacated at the Expiration of the 
second Year, of the second Class at the Expiration of the 
fourth Year, and of the third Class at the Expiration of 
the sixth Year, so that one third may be chosen every 
second Year ; and if Vacancies happen by Resignation, or 
otherwise, during the Recess of the Legislature of any 
State, the Executive thereof may make temporary Ap- 



266 CONSTITUTIONAL HISTORY 

pointments until the next Meeting of the Legislature^ which 
shall then fill such Vacancies. 

No Person shall be a Senator who shall not have at- 
tained to the Age of thirty Years, and been nine Years a 
Citizen of the United States, and who shall not, when 
elected, be an Inhabitant of that State for which he shall 
be chosen. 

The Vice President of the United States shall be Presi- 
dent of the Senate, but shall have no Vote, unless they be 
equally divided. 

The Senate shall chuse their other Officers, and also a 
President pro tempore, in the Absence of the Vice Presi- 
dent, or when he shall exercise the Office of President of 
the United States. 

The Senate shall have the sole Power to try all Im- 
peachments. When sitting for that Purpose, they shall be 
on Oath or Affirmation. When the President of the United 
States is tried, the Chief Justice shall preside: And no Per- 
son shall be convicted without the Concurrence of two 
thirds of the Members present. 

Judgment in Cases of Impeachment shall not extend 
further than to removal from Office, and disqualification to 
hold and enjoy any Office of honor. Trust or Profit under 
the United States: but the Party convicted shall neverthe- 
less be liable and subject to Indictment, Trial, Judgment 
and Punishment, according to Law. 

Section 4. The Times, Places and Manner of holding 
Elections for Senators and Representatives, shall be pre- 
scribed in each State by the Legislature thereof; but the 
Congress may at any time by Law make or alter such 
Regulations, except as to the Places of chusing Senators. 

The Congress shall assemble at least once in every Year, 
and such Meetings shall be on the first Monday in Decem- 
ber, unless they shall by Law appoint a different Day. 



OF THE UNITED STATES 267 

Section 5. Each House shall be the Judge of the 
Elections, Returns and Qualifications of its own Members, 
and a Majority of each shall constitute a Quorum to do 
Business; but a smaller Number may adjourn from day to 
day, and may be authorized to compel the Attendance of 
absent Members, in such Manner, and under such Penalties 
as each House may provide. 

Each House may determine the Rules of its Proceedings, 
punish its Members for disorderly Behaviour, and, with the 
Concurrence of two thirds, expel a Member. 

Each House shall keep a Journal of its Proceedings, and 
from time to time publish the same, excepting such Parts 
as may in their Judgment require Secrecy; and the Yeas 
and Nays of the Members of either House on any question 
shall, at the Desire of one fifth of those Present, be entered 
on the Journal. 

Neither House, during the Session of Congress, shall, 
without the Consent of the other, adjourn for more than 
three days, nor to any other Place than that in which the 
two Houses shall be sitting. 

Section 6. The Senators and Representatives shall re- 
ceive a Compensation for their Services, to be ascertained 
by Law, and paid out of the Treasury of the United States. 
They shall in all Cases, except Treason, Felony and 
Breach of the Peace, be privileged from Arrest during their 
Attendance at the Session of their respective Houses, and 
in going to and returning from the same; and for any 
Speech or Debate in either House, they shall not be 
questioned in any other Place. 

No Senator or Representative shall, during the Time for 
which he was elected, be appointed to any civil Ofiice under 
the Authority of the United States, which shall have been 
created, or the Emoluments whereof shall have been en- 
creased during such time; and no Person holding any 



268 CONSTITUTIONAL HISTORY 

Office under the United States^ shall be a Member of either 
House during his Continuance in Office. 

Section 7. All Bills for raising Revenue shall originate 
in the House of Representatives ; but the Senate may pro- 
pose or concur with Amendments as on other Bills. 

Every Bill which shall have passed the House of Repre- 
sentatives and the Senate^ shall, before it become a Law, 
be presented to the President of the United States; If he 
approve he shall sign it, but if not he shall return it, with 
his Objections to that House in which it shall have origi- 
nated, who shall enter the Objections at large on their 
Journal, and proceed to reconsider it. If after such Re- 
consideration two thirds of that House shall agree to pass 
the Bill, it shall be sent, together with the Objections, to 
the other House, by which it shall likewise be reconsidered, 
and if approved by two thirds of that House, it shall be- 
come a Law. But in all such Cases the Votes of both 
Houses shall be determined by yeas and Nays, and the 
Names of the Persons voting for and against the Bill shall 
be entered on the Journal of each House respectively. If 
any Bill shall not be returned by the President within ten 
Days (Sundays excepted) after it shall have been presented 
to him, the Same shall be a Law, in like Manner as if he 
had signed it, unless the Congress by their Adjournment 
prevent its Return, in which Case it shall not be a Law. 

Every Order, Resolution, or Vote to which the Concur- 
rence of the Senate and House of Representatives may 
be necessary (except on a question of Adjournment) shall 
be presented to the President of the United States; and 
before the Same shall take Effect, shall be approved by 
him, or being disapproved by him, shall be repassed by 
two thirds of the Senate and House of Representatives, 
according to the Rules and Limitations prescribed in the 
Case of a Bill. 



OF THE UNITED STATES 269 

Section 8. The Congress shall have Power To lay and 
collect Taxes, Duties, Imposts and Excises, to pay the 
Debts and provide for the common Defence and general 
Welfare of the United States; but all Duties, Imposts and 
Excises shall be uniform throughout the United States; 

To borrow Money on the credit of the United States ; 

To regulate Commerce with foreign Nations, and among 
the several States, and with the Indian Tribes; 

To establish an uniform Rule of Naturalization, and uni- 
form Laws on the subject of Bankruptcies throughout the 
United States ; 

To coin Money, regulate the Value thereof, and of for- 
eign Coin, and fix the Standard of Weights and Meas- 
ures; 

To provide for the Punishment of counterfeiting the Se- 
curities and current Coin of the United States; 

To establish Post Offices and post Roads; 

To promote the Progress of Science and useful Arts, 
by securing for limited Times to Authors and Inventors 
the exclusive Right to their respective Writings and Dis- 
coveries ; 

To constitute Tribunals inferior to the supreme Court; 

To define and punish Piracies and Felonies committed 
on the high Seas, and Offences against the Law of Na- 
tions ; 

To declare War, grant Letters of Marque and Reprisal, 
and make Rules concerning Captures on Land and Water; 

To raise and support Armies, but no Appropriation of 
Money to that Use shall be for a longer Term than two 
Years ; 

To provide and maintain a Navy; 

To make Rules for the Government and Regulation of 
the land and naval Forces ; 

To provide for calling forth the Militia to execute the 



270 CONSTITUTIONAL HISTORY 

Laws of the Union^ suppress Insurrections and repel In- 
vasions ; 

To provide for organizing, arming, and disciplining, the 
Militia, and for governing such Part of them as may be 
employed in the Service of the United States, reserving 
to the States respectively, the Appointment of the Officers, 
and the Authority of training the Militia according to the 
discipline prescribed by Congress; 

To exercise exclusive Legislation in all Cases whatso- 
ever, over such District (not exceeding ten Miles square) 
as may, by Cession of particular States, and the Acceptance 
of Congress, become the Seat of the Government of the 
United States, and to exercise like Authority over all Places 
purchased by the Consent of the Legislature of the State 
in which the Same shall be, for the Erection of Forts, 
Magazines, Arsenals, dock- Yards, and other needful Build- 
ings ; — And 

To make all Laws which shall be necessary and proper 
for carrying into Execution the foregoing Powers, and all 
other Powers vested by this Constitution in the Govern- 
ment of the United States, or in any Department or Officer 
thereof. 

Section 9- The Migration or Importation of such Per- 
sons as any of the States now existing shall think proper 
to admit, shall not be prohibited by the Congress prior to 
the Year one thousand eight hundred and eight, but a 
Tax or duty may be imposed on such Importation, not ex- 
ceeding ten dollars for each Person. 

The Privilege of the Writ of Habeas Corpus shall not 
be suspended, unless when in Cases of Rebellion or In- 
vasion the public Safety may require it. 

No bill of Attainder or ex post facto Law shall be 
passed. 

No Capitation, or other direct. Tax shall be laid, unless 



OF THE UNITED STATES 271 

in Proportion to the Census or Enumeration herein before 
directed to be taken. 

No Tax or Duty shall be laid on Articles exported from 
any State. 

No Preference shall be given by any Regulation of Com- 
merce or Revenue to the Ports of one State over those of 
another: nor shall Vessels bound to, or from, one State, be 
obliged to enter, clear, or pay Duties in another. 

No Money shall be drawn from the Treasury, but in 
Consequence of Appropriations made by Law; and a reg- 
ular Statement and Account of the Receipts and Expendi- 
tures of all public Money shall be published from time to 
time. 

No Title of Nobility shall be granted by the United 
States : And no Person holding any Office of Profit or 
Trust under them, shall, without the Consent of the Con- 
gress, accept of any present. Emolument, Office, or Title, 
of any kind whatever, from any King, Prince, or foreign 
State. 

Section 10. No State shall enter into any Treaty, Al- 
liance, or Confederation ; grant Letters of Marque and Re- 
prisal; coin Money; emit Bills of Credit; make any Thing 
but gold and silver Coin a Tender in Payment of Debts ; 
pass any Bill of Attainder, ex post facto Law, or Law 
impairing the Obligation of Contracts, or grant any Title 
of Nobility. 

No State shall, without the Consent of the Congress, lay 
any Imposts or Duties on Imports or Exports, except what 
may be absolutely necessary for executing its inspection 
Laws: and the net Produce of all Duties and Imposts, laid 
by any State on Imports or Exports, shall be for the Use 
of the Treasury of the United "States ; and all such Laws 
shall be subject to the Revision and Controul of the Con- 
gress. 



272 CONSTITUTIONAL HISTORY 

No State shall^ without the Consent of Congress, lay 
any Duty of Tonnage, keep Troops, or Ships of War in 
time of Peace, enter into any Agreement or Compact with 
another State, or with a foreign Power, or engage in War, 
unless actually invaded, or in such imminent Danger as 
will not admit of delay. 

Article II 

Section 1. The executive Power shall be vested in a 
President of the United States of America. He shall hold 
his Office during the Term of four Years, and, together 
with the Vice President, chosen for the same Term, be 
elected, as follows: 

Each State shall appoint, in such Manner as the Leg- 
islature thereof may direct, a Number of Electors, equal 
to the whole Number of Senators and Representatives to 
which the State may be entitled in the Congress: but no 
Senator or Representative, or Person holding an Office of 
Trust or Profit under the United States, shall be appointed 
an Elector. 

The Electors shall meet in their respective States, and 
vote by Ballot for two Persons, of whom one at least shall 
not be an Inhabitant of the same State with themselves. 
And they shall make a List of all the Persons voted for, 
and of the Number of Votes for each; which List they 
shall sign and certify, and transmit sealed to the Seat of 
the Government of the United States, directed to the Presi- 
dent of the Senate. The President of the Senate shall, in 
the Presence of the Senate and House of Representatives, 
open all the Certificates, and the Votes shall then be 
counted. The Person having the greatest Number of Votes 
shall be the President, if such Number be a Majority of 



OF THE UNITED STATES 273 

the whole Number of Electors appointed; and if there be 
more than one who have such Majority, and have an equal 
Number of Votes, then the House of Representatives shall 
immediately chuse by Ballot one of them for President; 
and if no Person have a Majority, then from the five high- 
est on the List the said House shall in like Manner chuse 
the President. But in chusing the President, the Votes 
shall be taken by States, the Representation from each 
State having one Vote; A quorum for this Purpose shall 
consist of a Member or Members from two thirds of the 
States, and a Majority of all the States shall be necessary 
to a Choice. In every Case, after the Choice of the Presi- 
dent, the Person having the greatest Number of Votes of 
the Electors shall be the Vice President. But if there 
should remain two or more who have equal Votes, the Sen- 
ate shall chuse from them by Ballot the Vice President. 

The Congress may determine the Time of chusing the 
Electors, and the Day on which they shall give their Votes; 
which Day shall be the same throughout the United States. 

No Person except a natural born Citizen, or a Citizen of 
the United States, at the time of the Adoption of this Con- 
stitution, shall be eligible to the Office of President; neither 
shall any Person be eligible to that Office who shall not 
have attained to the Age of thirty five Years, and been 
fourteen Years a Resident within the United States. 

In Case of the Removal of the President from Office, or 
of his Death, Resignation, or Inability to discharge the 
Powers and Duties of the said Office, the Same shall de- 
volve on the Vice President, and the Congress may by Law 
provide for the Case of Removal, Death, Resignation or 
Inability;, both of the President and Vice President, declar- 
ing what Officer shall then act. as President, and such 
Officer shall act accordingly, until the Disability be re- 
moved, or a President shall be elected. 



274 CONSTITUTIONAL HISTORY 

The President shall, at stated Times, receive for his 
Services, a Compensation, which shall neither be encreased 
nor diminished during the Period for which he shall have 
been elected, and he shall not receive within that Period 
any other Emolument from the United States, or any of 
them. 

Before he enter on the Execution of his Office, he shall 
take the following Oath or Affirmation: — "I do solemnly 
swear (or affirm) that I will faithfully execute the Office 
of President of the United States, and will to the best of 
my Ability, preserve, protect and defend the Constitution 
of the United States." 

Section 2. The President shall be Commander in Chief 
of the Army and Navy of the United States, and of the 
Militia of the several States, when called into the actual 
Service of the United States ; he may require the Opinion, 
in writing, of the principal Officer in each of the executive 
Departments, upon any Subject relating to the Duties of 
their respective Offices, and he shall have Power to grant 
Reprieves and Pardons for Offences against the United 
States, except in Cases of Impeachment. 

He shall have Power, by and with the Advice and Con- 
sent of the Senate, to make Treaties, provided two thirds 
of the Senators present concur; and he shall nominate, and 
by and with the Advice and Consent of tlie Senate, shall 
appoint Ambassadors, other public Ministers and Consuls, 
Judges of the supreme Court, and all other Officers of the 
United States, whose Appointments are not herein other- 
wise provided for, and which shall be established by Law: 
but the Congress may by Law vest the Appointment of 
such inferior Officers, as they think proper, in the Presi- 
dent alone, in the Courts of Law, or in the Heads of De- 
partments. 

The President shall have Power to fill up all Vacancies 



OF THE UNITED STATES 275 

that may happen during the Recess of the Senate, by 
granting Commissions which shall expire at the End of 
their next Session. 

Section 3. He shall from time to time give to the Con- 
gress Information of the State of the Union, and recom- 
mend to their Consideration such Measures as he shall 
judge necessary and expedient; he may, on extraordinary 
Occasions, convene both Houses, or either of them, and in 
Case of Disagreement between them, with Respect to the 
Time of Adjournment, he may adjourn them to such Time 
as he shall think proper; he shall receive Ambassadors and 
other public Ministers; he shall take Care that the Laws be 
faithfully executed, and shall Commission all the Officers 
of the United States. 

Section 4. The President, Vice President and all civil 
Officers of the United States, shall be removed from Office 
on Impeachment for, and Conviction of. Treason, Bribery, 
or other high Crimes and Misdemeanors. 

Article III 

Section 1. The judicial Power of the United States, shall 
be vested in one supreme Court, and in such inferior Courts 
as the Congress may from time to time ordain and establish. 
The Judges, both of the supreme and inferior Courts, shall 
hold their Offices during good Behaviour, and shall, at 
stated Times, receive for their Services, a Compensation, 
which shall not be diminished during their Continuance in 
Office. 

Section 2. The judicial Power shall extend to all Cases, 
in Law and Equity, arising under this Constitution, the 
Laws of the United States, and Treaties made, or which 
shall be made, under their authority; — to all Cases affect- 



276 CONSTITUTIONAL HISTORY 

ing Ambassadors^ other public Ministers and Consuls; — ^to 
all Cases of admiralty and maritime Jurisdiction; — to Con- 
troversies to which the United States shall be a Party; — 
to Controversies between two or more States; — between a 
State and Citizens of another State; — between Citizens of 
different States, — between Citizens of the same State 
claiming Lands under Grants of different States, and be- 
tween a State, or the Citizens thereof, and foreign States, 
Citizens or Subjects. 

In all Cases affecting Ambassadors, other public Minis- 
ters and Consuls, and those in which a State shall be Party, 
the supreme Court shall have original Jurisdiction. In all 
the other Cases before mentioned, the Supreme Court shall 
have appellate Jurisdiction, both as to Law and Fact, with 
such Exceptions, and under such regulations as the Con- 
gress shall make. 

The Trial of all Crimes, except in Cases of Impeach- 
ment, shall be by Jury; and such Trial shall be held in the 
State where the said Crimes shall have been committed; 
but when not committed within any State, the Trial shall 
be at such Place or Places as the Congress may by law 
have directed. 

Section 3. Treason against the United States, shall con- 
sist only in levying War against them, or in adhering to 
their Enemies, giving them Aid and Comfort. No Person 
shall be convicted of Treason unless on the Testimony of 
two witnesses to the same overt Act, or on Confession in 
open Court. 

The Congress shall have Power to declare the Punish- 
ment of Treason, but no Attainder of Treason shall work 
Corruption of Blood, or Forfeiture except during the Life 
of the Person attainted. 



OF THE UNITED STATES 277 



Article IV 

Section 1. Full faith and Credit shall be given in each 
State to the public Acts, Records, and judicial Proceed- 
ings of every other State. And the Congress may by gen- 
eral Laws prescribe the Manner in which such Acts, 
Records and Proceedings shall be proved, and the Effect 
thereof. 

Section 2. The Citizens of each State shall be entitled 
to all Privileges and Immunities of Citizens in the several 
States. 

A Person charged in any State with Treason, Felony, 
or other Crime, who shall flee from Justice, and be found 
in another State, shall on Demand of the executive Author- 
ity of the State from which he fled, be delivered up, to be 
removed to the State having Jurisdiction of the Crime. 

No Person held to Service or Labour in one State, under 
the Laws thereof, escaping into another, shall, in Conse- 
quence of any Law or Regulation therein, be discharged 
from such Service or Labour, but shall be delivered up on 
Claim of the Party to whom such Service or Labour may 
be due. 

Section 3. New States may be admitted by the Con- 
gress into this Union ; but no new State shall be formed 
or erected within the Jurisdiction of any other State; nor 
any State be formed b}'^ the Junction of two or more States, 
or Parts of States, without the Consent of the Legislatures 
of the States concerned as well as of the Congress. 

The Congress shall have Power to dispose of and make 
all needful Rules and Regulation's respecting the Territory 
or other Property belonging to the United States ; and noth- 
ing in this Constitution shall be so construed as to Preju- 



278 CONSTITUTIONAL HISTORY 

dice any Claims of the United States^ or of any particular 
State. 

Section 4. The United States shall guarantee to every 
State in this Union a Republican Form of Government, 
and shall protect each of them against Invasion; and on 
Application of the Legislature, or of the Executive (when 
the Legislature cannot be convened) against domestic Vio- 
lence. 

Article V 

The Congress, whenever two thirds of both Houses shall 
deem it necessary, shall propose Amendments to this Con- 
stitution, or, on the Application of the Legislatures of two 
thirds of the several States, shall call a Convention for pro- 
posing Amendments, which, in either Case, shall be valid 
to all Intents and Purposes, as Part of this Constitution, 
when ratified by the Legislatures of three fourths of the 
several States, or by Conventions in three fourths thereof, 
as the one or the other Mode of Ratification may be pro- 
posed by the Congress ; Provided that no Amendment which 
may be made prior to the Year One thousand eight hundred 
and eight shall in any Manner affect the first and fourth 
Clauses in the Ninth Section of the first Article; and that 
no State, without its Consent, shall be deprived of its equal 
Sufi'rage in the Senate. 

Article VI 

All Debts contracted and Engagements entered into, be- 
fore the Adoption of this Constitution, shall be as valid 
against the United States under this Constitution, as under 
the Confederation. 

This Constitution, and the Laws of the United States 
which shall be made in Pursuance thereof; and all Treaties 



OF THE UNITED STATES 279 

made, or which shall be made, under the Authority of the 
United States, shall be the supreme Law of the Land ; and 
the Judges in every State shall be bound thereby, any 
Thing in the Constitution or Laws of any State to the Con- 
trary notwithstanding. 

The Senators and Representatives before mentioned, and 
the Members of the several State Legislatures, and all 
executive and judicial Officers, both of the United States 
and of the several States, shall be bound by Oath or Affir- 
mation, to support this Constitution; but no religious Test 
shall ever be required as a Qualification to any Office or 
public Trust under the United States. 

Article VII 

The Ratification of the Conventions of nine States, shall 
be sufficient for the Establishment of this Constitution be- 
tween the States so ratifying the Same. 

Done in Convention by the Unanimous Consent of the 
States present the Seventeenth Day of September in the 
Year of our Lord one thousand seven hundred and Eighty 
seven and of the Independence of the United States of 
America the Twelfth. In witness whereof We have here- 
unto subscribed our Names, 
Attest, 
William Jackson, Secretary. 

Go. Washington — Presidt. 

and deputy from Virginia. 

Nerv Hampshire 
John Langdon, Nicholas Oilman. 

Massachusetts 
Nathaniel Gorham, Rufus King. 



280 



CONSTITUTIONAL HISTORY 



Connecticut 
Wm. Saml. Johnson, Roger Sherman. 

New York 
Alexander Hamilton. 



Wil: Livingston, 
David Brearley^ 



B. Franklin, 
Thomas Mifflin, 
RoBT. Morris, 
Geo. Clymer, 



New Jersey 

Wm. Paterson, 
Jona: Dayton, 

Pennsylvania 

Thos. FitzSimons, 
Jared Ingersoll, 
James Wilson, 
Gouv. Morris. 

Delaware 



Richard Bassett, 



Geo: Read, 

Gunning Bedford, jun., Jaco: Broom. 

John Dickinson, 

Maryland 

James McHenry, Danl. Carroll. 

Dan of St. Thos. Jenifer, 



John Blair — 



Wm. Blount, 

Richd. Dobbs Spaight, 



Virginia 

James Madison, Jr. 

North Carolina 

Hu Williamson, 



OF THE UNITED STATES 281 

South Carolina 

J. RuTLEDGE, Charles Pinckney, 

Charles Cotesworth Pierce Butler. 

Pinckney, 

Georgia 
William Few, Abr. Baldwin. 



AMENDMENTS TO THE CONSTITUTION 

Article I 

Congress shall make no law respecting an establishment 
of religion, or prohibiting the free exercise thereof; or 
abridging the freedom of speech, or of the press ; or the 
right of the people peaceably to assemble, and to petition 
the Government for a redress of grievances. 

Article II 

A well regulated Militia, being necessary to the security 
of a free State, the right of the people to keep and bear 
Arms, shall not be infringed. 

Article III 

No Soldier shall, in time of peace be quartered in any 
house, without the consent of the Owner, nor in time of 
war, but in a manner to be prescribed by law. 

Article IV 

The right of the people to be secure in their persons, 
houses, papers, and effects, against unreasonable searches 
and seizures, shall not be violated, and no Warrants shall 



282 CONSTITUTIONAL HISTORY 

issue^ but upon probable cause^ supported by Oath or af- 
firmation, and particularly describing the place to be 
searched, and the persons or things to be seized. 



Article V 

No person shall be held to answer for a capital, or other- 
wise infamous crime, unless on a presentment or indict- 
ment of a Grand Jury, except in cases arising in the land 
or naval forces, or in the Militia, when in actual service in 
time of War or public danger; nor shall any person be 
subject for the same offence to be twice put in jeopardy 
of life or limb; nor shall be compelled in any criminal case 
to be a witness against himself, nor be deprived of life, 
liberty, or property, without due process of law; nor shall 
private property be taken for public use, without just com- 
pensation. 

Article VI 

In all criminal prosecutions, the accused shall enjoy the 
right to a speedy and public trial, by an impartial jury of 
the State and district wherein the crime shall have been 
committed, which district shall have been previously ascer- 
tained by law, and to be informed of the nature and cause 
of the accusation; to be confronted with the witnesses 
against him; to have compulsory process for obtaining wit- 
nesses in his favor, and to have the Assistance of Counsel 
for his defence. 

Article VII 

In Suits at common law, where the value in controversy 
shall exceed twenty dollars, the right of trial by jury shall 
be preserved, and no fact tried by a jury, shall be other- 



OF THE UNITED STATES 283 

wise re-examined in any Court of the United States, than 
according to the rules of the common law. 

Article VIII 

Excessive bail shall not be required, nor excessive fines 
imposed, nor cruel and imusual punishments inflicted. 

Article IX 

The enumeration in the Constitution, of certain rights, 
shall not be construed to deny or disparage others retained 
by the people. 

Article X 

The powers not delegated to the United States by the 
Constitution, nor prohibited by it to the States, are re- 
served to the States respectively, or to the people. 

Article XI 

The Judicial power of the United States shall not be 
construed to extend to any suit in law or equity, commenced 
or prosecuted against one of the United States by Citizens 
of another State, or by Citizens or Subjects of any Foreign 
State. 

Article XII 

The Electors shall meet in their respective states, and 
vote by ballot for President and Vice-President, one of 
whom, at least, shall not be an inhabitant of the same state 
with themselves; they shall name in their ballots the per- 
son voted for as President, and in distinct ballots the per- 
son voted for as Vice-President, and they shall make 
distinct lists of all persons voted for as President, and of 



284 CONSTITUTIONAL HISTORY 

all persons voted for as Vice-President, and of the number 
of votes for each, w^hich lists they shall sign and certify, 
and transmit sealed to the seat of the government of the 
United States, directed to the President of the Senate; — 
The President of the Senate shall, in the presence of the 
Senate and House of Representatives, open all the certifi- 
cates and the votes shall . then be counted ; — The person 
having the greatest number of votes for President, shall 
be the President, if such number be a majority of the 
whole number of Electors appointed ; and if no person have 
such majority, then from the persons having the highest 
numbers not exceeding three on the list of those voted for 
as President, the House of Representatives shall choose 
immediately, by ballot, the President. But in choosing the 
President, the votes shall be taken by States, the repre- 
sentation from each state having one vote; a quorum for 
this purpose shall consist of a member or members from 
two-thirds of the states, and a majority of all the states 
shall be necessary to a choice. And if the House of 
Representatives shall not choose a President whenever the 
right of choice shall devolve upon them, before the fourth 
day of March next following, then the Vice-President shall 
act as President, as in the case of the death or other con- 
stitutional disability of the President. — The person having 
the greatest number of votes as Vice-President shall be the 
Vice-President, if such number be a majority of the whole 
number of Electors appointed, and if no person have a 
majority, then from the two highest numbers on the list, 
the Senate shall choose the Vice-President; a quorum for 
the purpose shall consist of two-thirds of the whole num- 
ber of Senators, and a majority of the whole number shall 
be necessary to a choice. But no person constitutionally 
ineligible to the office of President shall be eligible to that 
of Vice-President of the United States. 



OF THE UNITED STATES 285 



Article XIII 

Section 1. Neither slavery nor involuntary servitude, 
except as a punishment for crime whereof the party shall 
have been duly convicted, shall exist within the United 
States, or any place subject to their jurisdiction. 

Section 2. Congress shall have power to enforce this 
article by appropriate legislation. 



Article XIV 

Section 1. All persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, are citizens 
of the United States and of the State wherein they reside. 
No State shall make or enforce any law which shall abridge 
the privileges or immunities of citizens of the United 
States; nor shall any State deprive any person of life, 
liberty, or property, without due process of law; nor deny 
to any person within its jurisdiction the equal protection 
of the laws. 

Section 2. Representatives shall be apportioned among 
the several States according to their respective numbers, 
counting the whole number of persons in each State, ex- 
cluding Indians not taxed. But when the right to vote at 
any election for the choice of electors for President and 
Vice President of the United States, Representatives in 
Congress, the Executive and Judicial officers of a State, or 
the members of the Legislature thereof, is denied to any of 
the male inhabitants of such State, being twenty-one years 
of age, and citizens of the United States, or in any way 
abridged, except for participation in rebellion, or other 
crime, the basis of representation therein shall be reduced 
in the proportion which the number of such male citizens 



286 CONSTITUTIONAL HISTORY 

shall bear to the whole number of male citizens twenty- 
one years of age in such State. 

Section 3. No person shall be a Senator or Repre- 
sentative in Congress, or elector of President and Vice 
President, or hold any office, civil or military, under the 
United States, or under any State, who, having previously 
taken an oath, as a member of Congress, or as an officer 
of the United States, or as a member of any State legisla- 
ture, or as an executive or judicial officer of any State, to 
support the Constitution of the United States, shall have 
engaged in insurrection or rebellion against the same, or 
given aid or comfort to the enemies thereof. But Congress 
may by a vote of two-thirds of each House, remove such 
disability. 

Section 4. The validity of the public debt of the United 
States, authorized by law, including debts incurred for pay- 
ment of pensions and bounties for services in suppressing 
insurrection or rebellion, shall not be questioned. But 
neither the United States nor any State shall assume or 
pay any debt or obligation incurred in aid of insurrection 
or rebellion against the United States, or any claim for the 
loss or emancipation of any slave; but all such debts, obli- 
gations and claims shall be held illegal and void. 

Section 5. The Congress shall have power to enforce, 
by appropriate legislation, the provisions of this article. 

Article XV 

Section 1. The right of citizens of the United States to 
vote shall not be denied or abridged by the United States 
or by any State on account of race, color, or previous con- 
dition of servitude — 

Section 2. The Congress shall have power to enforce 
this article by appropriate legislation — 



OF THE UNITED STATES 287 

Confjress proposed twelve amendments to the Constitution on Sep- 
tember 25, 1789. The first two were never ratified by the requisite 
number of States. The other ten were ratified by more than three- 
fourtlis of tlie States before the close of 1791 and became the first ten 
amendments to the Constitution. 

At the first session of the third Congress, which began December 2, 
1793, and closed July 9, 1794, Congress proposed the eleventh amend- 
ment; it was proclaimed a part of the Constitution on January 8, 1798. 
The twelfth amendment was proposed by Congress on December 12, 
1803, and on September 25, 1804, it was declared a part of the Consti- 
tution. Congress proposed the thirteenth amendment on February 1, 
1865, and on December 18, 1865, it was proclaimed a part of the Consti- 
tution. The fourteenth amendment was proposed by Congress on June 
16, 1866, and proclaimed a part of the Constitution on July 28, 1868, by 
the Secretary of State under instructions from Congress adopted July 21, 
1868. On February 27, 1869, the fifteenth amendment was proposed 
by Congress and on March 30, 1870, it was proclaimed a part of the 
Constitution. 



INDEX 



Acquiring new territory, 134, 192 
Admission of States on basis of 
geographical interests, 145, 148 
Adoption of Constitution, 119 
Advantages of written constitu- 
tion, 10, 27 
Alien and sedition laws, 178 
Amending the constitution, 121, 

168, 211, 220, 224 
Amendment proposed preventing 

abolition of slavery, 168 
Annexing territory by act of con- 
gress, 139 
Appeals from colonial courts to 
English government, 29, 30, 32, 
35 
Apportioning taxes on basis of 

slaves, 143, 144 
Aristocracy in the colonies, 20, 

22, 41 
Articles of confederation, 62, 188 
Assumption of state debt, 130 
Authority of colonial legislation, 

13, 15, 22, 42 
Authority of the constitutional 
convention, 77 

Ballot, 27, 35 

Basis of claim for self-taxation, 

15,30 
Bill of rights, 27, 35, 122 
Bills of credit, 242 
British constitution, 8 

Calhng the convention, 70 

Carolina, 41 

Centralization, fear of, 86, 120 



Change of opinion, 126, 128, 175, 

181 
Church and state, 20, 21, 29, 38, 43 
Citizen, obligations of, to national 

and to state government, 122, 

189, 199 
Citizen, the political unit, 94 
Citizenship under the constitution, 

114, 165, 172,220 
Civil rights, 219 
Coercion, 189, 202 
Colonial claims, 12, 23, 32, 35, 42 
Colonial constitutions, 10, 18, 24, 

27, 35, 36, 41, 43 
Colonial union, 43 
Colony or state as the political 

unit, 54 
Common law brought here, 13 
Compact, 112, 177, 179, 187, 193 
Compromises, 95, 117, 119, 144, 

148, 150, 153, 163, 190 
Confederacy, 97, 110, 112, 176 
Confederate states, 199 
Confederation, 43, 62, 68, 113, 143, 

188 
Conflict between freedom and 

slavery, 142, 195, 234, 238 
Conflict of opinion between Eng- 
land and her colonies, 12, 20, 31, 

45, 47 
Congress, control over its own 

records, 233 
Congress, authority over terri- 
tories, 150, 164, 173 
Congress, power over slavery, 150, 

163, 167, 210 
Congress, 44, 45, 53, 212 
Connecticut, 35 



289 



290 



INDEX 



Consolidation of sentiment for 
slavery, 146, 186, 210 

Constitutional convention, 70-118 

Constitutions, 10, 18, 24, 27, 35, 
36,41,43,97,98,111 

Constitution as affecting territories, 
229 

Construction, 4, 97, 105, 111, 126, 
129, 135, 152, 178, 188, 204 

Contemporary interpretation, 96, 
98, 111, 122, 205 

Contest between President and 
congress, 132, 212 

Contests between the colonies and 
home government, 12, 14, 16, 
30, 32, 34, 42, 45 

Court, supreme, organized in in- 
terest of slavery, 165. 

Courts, colonial, and British gov- 
ernment, 16, 30, 35 

Debate between Webster and 
Hayne, 183 

Declaration of rights, 23, 32, 46 

Defense of government property, 
207 

Delaware, 42 

Delegated powers, 104 

Democracy, 22, 24, 26, 36, 38 

Derivative powers, 104 

Dissolution of the Union, threats 
of, 149, 175, 181, 192, 195 

Divergent interests, 175 

Division of parties on geograph- 
ical lines, 128, 145, 147, 197 

Dred Scott case, 136, 141, 160, 196 

Education, 20 

Emancipation, 169, 210 

English liberty, 8 

Environment, 128 

Equality of representation in 

senate, 116, 144 
Extra judicial decision, 163 



Federalist, 99 
Feudalism in America, 13, 
30,41 



J. 23, 



Financial measures, 130 

Freedmen, 216 

Freedom and slavery, contests 

over, 142, 147, 157, 167, 195, 

234, 238 
Freedom of opinion, 12, 38, 43 
Freedom of press, 235 
Freedom of speech, 234, 240 
Freedom of slaves, 169, 210 
Funding revolutionary debt, 130 

Geographical division of parties, 

128, 145, 147, 197 
Government, 50, 68, 101, 206 
Government by injunction, 248 
Government's relation to slavery 

and slaves, 152, 166, 169, 195, 

227 
Government's right to protect 

itself, 172, 175, 202 

Hartford convention, 181 
House of representatives partici- 
pating in making treaty, 132 

Imphed powers, 2, 106, 122, 137, 

206, 242 
Indestructible statehood, 101, 170, 

213 
Injunction, government by, 248 
Internal revenue, 131 
Interpretation of Constitution by 

the states, 118, 179, 184, 188, 193 

Kansas, 153, 195 

Kentucky and Virginia resolutions, 

178 

Legal tender act, 242 
Legislation, the president and, 231 
Legislative authority, 14, 18, 22, 

25, 41, 43 
Legislative construction, 132, 150, 

166, 223 
Local government, 18, 29, 36, 39, 

110, 116 
London Company, 18, 21, 25 
Louisiana Purchase, 192 



INDEX 



291 



Magna Charta, 10, 42 
Maryland, 21 
Massachusetts, 25 
Missouri Compromise, 148, 154, 
163 

Nation, 98, 110, 113, 175, 188 
National government, 103, 172, 

190 
Natural born citizen, 114 
Negroes as citizens, 165 
Negro suffrage, 224 
New England town-meetings, 29, 

39 
New Jersey, 42 

New territory, acquisition of, 134 
New York, 4 1 
Nullification, 118, 130, 149, 174, 

179, 182, 185, 189, 202 

Opposition to government action, 

126, 175, 180 
Ordinance of 1787, 143 
Origin of constitutional views, 8 
Original powers, 104, 194 

Party conflicts, 126, 167 
Pennsylvania, 43 
People, 6, 108, 187 
Personal liberty, 20 
Petition, right of, 28, 53, 235 
Petition, contests over right of, 

145, 191, 235 
Plymouth, 24 
Plymouth Company, 25 
Political considerations in judicial 

opinions, 163 
Political unit, 54, 94 
Popular goveriunent, 9, 18, 22, 24, 

26, 38, 41 
Powers of government — original 

and derived, 104, 194 
Preamble, force of, 108 
President and legislation, 231 
President and power to declare 

war, 232 
Property in slaves, 166, 228 



Providential control in national 
affairs, 5, 63, 141, 159 

Ratification of amendment can- 
not be recalled, 223 

Reconstruction, 212 

Records, power of each house over 
its, 233 

Religious thought, effect of, on 
constitution, 11 

Representative assemblies, 18, 22, 
24, 26, 35, 41, 43 

Representation for slaves, 144 

Revolutionary bodies, 53, 75 

Rhode Island, 37, 76, 79, 83 

Seceded States, 173, 213, 215, 221 
Secession, 149, 174, 184, 191, 198 
Self-defense by government, 172, 

175, 202 
Slavery before and under the con- 
stitution, 28, 43, 135, 142, 210, 

228 
Slavery in or excluded from the 

territories, 141, 150, 163, 195, 

229 
Slavery, influence of, 144, 146, 167, 

200 
Slave's offspring, 20 
Slaves, property in, 166, 195, 228 
Slaves and slavery, government's 

connection with, 152, 169, 210, 

227 
Sovereignty, 12, 31, 49, 64, 101, 

103, 113, 137, 170 
Squatter sovereignty, 156, 196 
State sovereignty, 51, 67, 101, 103, 

115, 118, 128, 149, 170, 178, 

183, 187, 194, 201 
State, 115, 170, 172 
State, seceded, condition of, 173, 

215, 221 
Strict construction, 122, 129, 135, 

153 
Strikes, 248 

Supreme Court organized in inter- 
est of slavery, 165 
Suffrage, 20, 24, 26, 35, 36, 38, 224 



292 



INDEX 



Territories, constitution over, 229 
Territories, power of congress over, 

141, 150, 154, 159, 163, 229 
Territory, acquisition of, 134 
Territory, ownership of, 164 
Texas, 138, 150, 192 
Theories respecting sovereignty, 51 
Town-meetings, 29, 35, 36, 39 
Treaties, by whom made, 132 

Union of colonies, 43 



Virginia, 17, 57 

Vii-ginia and Kentucky resolu- 
tions, 178 
Voting, mode of, 27, 35 

War, power of president to declare, 

232 
Webster and Hayne debate, 183 
Whiskey rebellion, 131, 177 
Written constitutions, 10, 18, 24, 

27, 35, 36, 41, 43, 58 



European Constitutional History 

OR 

THE ORIGIN AND DEVELOPMENT OF THE 
GOVERNMENTS OF MODERN EUROPE 

FROM THE 

Fall of the Western Roman Empire to the Close 
of the Nineteenth Century 

BY 

NELSON CASE 

OF OSWEGO, KANSAS 



ToPEKA, Kan., September 6, 1902. 

" I have examined European Constitutional History with great care, 
and find it an excellent treatise of this very important subject. The 
interpretation of the government of the different nations is all that could 
be desired. I am quite sure that this text will prove very acceptable for 
college and high-school work." 

FRANK NELSON. 
State Superintendent of Public Instruction. 

" I have carefully examined the work of Judge Case on the History of 
Constitutional Government, and I find it a most attractive and interesting 
volume. The subject-matter is of the highest order, snd the method of 
treatment and the diction all that could be desired in such a book. It is 
the best book that I now know of for a college and normal text-book on 
this subject." 

H. A. GOBIN, 
President De Pauw University. 

Oxford, Ohio, September 25, 1902. 

"Judge Case has given an exhaustive study of his subject from the 
standpoint of a great constitutional lawyer, and has written a book that 
is without a peer in its field. It has been adopted for use in the classes 
of Miami University as a text-book, and other institutions will do well to 
follow our example." 

GUY P. BENTON, 

President Miami University. 



Crown 8vo Cloth 421 Pages Index 

PRICE, POSTPAID. $1.50 

JENNINGS & PYE, = - Cincinnati, Chicago, Kansas City 



PRESS NOTICES 



We have seen no better book for the work that it attempts to do and 
that reader who wishes to know something of the germ of modern con- 
stitutional government in Europe and the stormy way by which it has 
come to Its present position can do no better than turn to this book for 
instruction. — Public Opinion, August 7^ igo2. 

" A valuable contribution to historical literature. Judge Case takes 
up the origin and development of the governments of modern Europe 
covering a period from the fall of the Western Roman Empire to the close 
of the Nineteenth Century. Condensed within the 400 pages of the book 
is the complete history of this period, presented in such an intelligent way 
that the reader cannot fail to gain an accurate and thorough knowledge 
of the governments of Europe which have flourished during this period. 

" The work is of unusual value, for the reason that Judge Case has 
given particular attention to the incidents in history which have affected the 
constitutions and governments of modern Europe, taking up each country 
in detail, and treating, not only the history of its government, but also 
the principles and the results of the experiment. Altogether it is as 
nearly a perfect work upon the subject of European constitutional history 
as we have ever seen. It has excellent literary character in addition to 
its value as a work of history." — Evening Htrald, Ottawa, Kan. 

" The book is a concise but complete history of the origin and develop- 
ment of the government forms of modern European nations since the fall 
of the Western Roman Empire, and is a comprehensive and exhaustive 
study of the constitutional development of each separate nation. The book 
is sufficiently clear and simple in expression and the matter sufficiently 
condensed to make it invaluable as a text-book, but it is also excellent 
reading, and will find a welcome in the libraries of the discerning. Its 
author is the master of a style of enviable lucidity, brevity, and compact- 
ness. There is a distinct pleasure in reading such vigorous, virile, 
unaffected English."— Tl^/^/^a State Journal, September ij, igo2. 

"The ground covered in this history is so vast that it is a matter of 
surprise to the reader that the author has been able to present so much in 
detail and give so accurate and full aq account of the numerous countries 
of Europe. This volume will give the ordinary reader all the information 
he desires concerning European countries and render him familiar with 
the history of these countries for the past four hundred years." 

— Northwestern Christian Advocate. 

" It is a book for the pessimist to read, that he may be cured of his 
disposition to decry our modern institutions and social order, and to 
lament over the disappearance of the ' good old times.' These good old 
times were dismal times for those who stood up for personal liberty, who 
argued or fought in behalf of parliamentary government, or opposed the 
aggressions of regal tyranny. And many of us would do well to read 
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country, a good index, and a brief introduction help to make the book 
available and useful." 1! J \. 1 /^ <^ IbJ 

H ck5 82 '^ 

JENNINGS & PYE, - - Cincinnati, Chicago, Kansas City 



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